UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


HAMMON  ON  EVIDENCE 


COVERING 


BURDEN  OF  PROOF,  PRESUMPTIONS,  JUDICIAL 

NOTICE,  JUDICIAL  ADMISSIONS, 

AND  ESTOPPEL 


BY 

LOUIS  L.  HAMMON 

AUTHOR  OF  "A  TREATISE  ON  CONTRACTS,"  ETC. 


NAB   5J930 


ST.  PAUL,  MINN. 

THE  KEEFE-DAVIDSON  CO.  NATIONAL  LAW  BOOK  COMPANY 

1907. 


HIVHe. 


COPYRIGHT  1907 

BY 
THE  KEEFE-DAVIDSON  CO. 


PREFACE. 


Those  rules  which  are  commonly  regarded  by  the  legal  pro- 
fession as  belonging  to  the  law  of  evidence  may  be  divided  into 
five  grand  divisions,  viz. : 

I.  Rules  Relating  to  the  Right  or  the  Necessity  of  Adducing 
Evidence. 

II.  Rules  Denning  the  Means  of  Proof. 

III.  Rules  Determining  the  Admissibility  of  Evidence. 

IV.  Rules  Relating  to  the  Production  of  Evidence. 
V.  Rules  Determining  the  Weight  of  Evidence. 

I.  Right    or    Necessity    of    Adducing    Evidence.     These    rules 
form  the  subject  of  this  volume,  and  are  referred  to  in  a  later 
place  in  the  preface. 

II.  Means  of  Proof.     The  means  by  which  a  given  fact  may 
be  proved  are  three,  viz.:     (1)  The  material  thing  whose  ex- 
istence or  condition  is  in  dispute.     This  is  commonly  termed 
"real  or  demonstrative  evidence,"  and  is  more  aptly  described, 
perhaps,  as  "judicial  inspection."     (2)   Documents  constitut- 
ing a  memorial  or  containing  a  recital  of  the  fact  in  dispute. 
This  is  known  as  "documentary  evidence."    It  may  be  observ- 

.ed  in  this  connection  that  when  the  existence  or  condition  of 
the  document  itself  is  in  dispute,  and  the  writing  is  introduced 
to  settle  the  question,  the  document  becomes  an  instrument  of 
real  or  demonstrative  evidence,  and  may  be  termed  "documen- 
tary evidence"  only  in  a  broad  sense  of  the  term.  It  is  only 
when  the  document  evidences  an  extraneous  fact  in  dispute 
that  it  constitutes  documentary  evidence  in  the  narrower  sense 
in  which  that  term  is  used  in  distinguishing  the  three  means 
of  proof.  (3)  Persons  who  give  testimony,  direct  or  indirect, 
of  the  existence  of  the  fact  in  dispute.  This  is  "testimonial 
evidence,"  and  as  a  means  of  proof  it  is  governed  by  those 
rules  which  determine  the  competency  or  prescribe  the  qualifi- 
cations of  a  person  to  testify  as  a  witness. 


III.  Admissibility    of   Evidence.    Anything   that    tends    to 
prove  the  existence  of  the  fact  in  issue  is  admissible  for  that 
purpose,  in  the  absence  of  some  rule  to  the  contrary.     These 
rules  to  the  contrary  form  the  bulk  of  this  division  of  the  law 
of  evidence.    Rules   of   admissibility   and   exclusion   include, 
among  others,  those  relating  to  the  relevancy  of  evidence;  the 
rule  against  hearsay,  and  its  exceptions ;  rules  of  primary  and 
secondary  evidence,  or  the  so-called  "best-evidence  rule";  the 
parol  evidence  rule,  etc. 

IV.  Production  of  Evidence.     The  rules  falling  under  this 
head  relate  to  practice,  rather  than  evidence.     They  prescribe 
the  mode   in  which   a  proponent  may   adduce   evidence   within 
his  control,  and  in  which  he  may  compel  the  production,  for  his 
benefit,  of  evidence  not  within  his  control.     They  thus  include 
the  rules  for  the  attendance  and  examination  of  witnesses,  rules 
for  physical  examination  and  view,  rules  for  the  production  of 
documents,  and  rules  for  discovery. 

V.  Weight   of  Evidence.     Evidence   must   be   of   a   certain 
weight  to  constitute  proof.     It  must,  in  all  cases,  be  sufficient 
to  produce  conviction  in  the  minds  of  the  court  or  the  jury  of 
the  existence  of  the  fact  in  dispute.     The  degree  of  evidence 
required  thus  to  produce  conviction  differs  in  civil  and  criminal 
cases,  and  in  some  classes  of  cases  it  must  be  of  a  peculiar  qual- 
ity.    These  rules  form  the  last  of  the  grand  divisions  of  the 
law  of  evidence. 

This  volume  is  concerned  with  the  first  grand  division  only, 
viz. :  The  Right  or  The  Necessity  of  Adducing  Evidence.  The 
rules  falling  under  this  head  may  be  divided  into  four  chapters, 
viz.: 

I.  Burden  of  Proof  and  Presumptions. 
II.  Judicial  Notice. 
III.  Judicial  Admissions. 
IV.  Estoppel. 

I.  Burden  of  Proof  and  Presumptions.  These  two  conceptions 
are  closely  related.  An  adequate  presentation  of  the  rules  gov- 
erning the  burden  of  proof  in  a  given  topic  of  the  law — such, 


for  example,  as  negligence — cannot  be  made  without  presenting 
also  the  rules  of  presumption  prevailing  there,  and  vice  versa. 
This  connection  exists  even  in  theory.  While  the  theory  of 
burden  of  proof  may  be  explained  without  reference  to  pre- 
sumptions, an  explanation  of  the  theory  of  presumptions  can- 
not possibly  be  made  without  reference  to  burden  of  proof. 
For  this  reason  these  matters  are  considered  in  one  chapter. 

There  is  much  confusion  in  the  law  relating  to  burden  of 
proof  and  presumptions.  For  the  most  part,  however,  it  is  due 
to  a  lack  of  discrimination  and  a  want  of  uniformity  in  the  use 
of  terms,  rather  than  to  ignorance  of  the  nature,  operation, 
and  effect  of  the  conceptions  which  those  terms  are  employed 
to  denote.  With  the  decisions  themselves  there  is  no  more 
fault  to  be  found  in  this  branch  of  the  law,  perhaps,  than  in 
many  others;  but  the  terms  in  which  those  decisions  are  ex« 
pressed,  and  the  processes  of  reasoning  by  which  they  are 
reached,  present  a  degree  of  inaccuracy  and  inconsistency  not 
elsewhere  exceeded.  This  being  the  case,  the  author,  while 
chary  of  "meddling"  with  the  law,  has  been  compelled  of  ne- 
cessity to  fix  upon  a  terminology,  and  to  construe  and  classify 
the  cases  according  to  the  legal  effect  which  they  give  to  the 
conceptions  which  his  chosen  terms  denote,  rather  than  accord- 
ing to  the  varying  terms  which  the  different  courts  employ  to 
denote  those  conceptions;  otherwise,  this  book  would  serve 
only  to  perpetuate  the  existing  confusion,  rather  than  to  dispel 
it.  It  seems  to  the  author  that  this  treatment  of  the  cases  has 
yielded  some  degree  of  success.  Much  apparent  conflict  has 
been  done  away  with.  Cases  on  their  face  in  discord  have  been 
found  in  legal  effect  to  be  in  harmony.  At  the  same  time,  it  is 
not  to  be  expected  that  with  such  material  there  should  be  a 
unanimous  opinion  as  to  the  results  attained.  Many  cases, 
from  their  obscurity  or  ambiguity,  are  susceptible  of  conflict- 
ing interpretations.  Yet  it  is  the  author's  belief  that  a  careful 
reading  of  the  cases  according  to  their  strict  effect  as  prece- 
dents, rather  than  according  to  the  terms  in  which  they  are  ex- 
pressed, will  subject  his  conclusions  to  comparatively  little  crit- 
icism. 


Apart  from  bringing  some  degree  of  harmony  out  of  much 
confusion,  the  particular  feature  of  this  chapter  is  thought  to 
consist  in  the  absence  from  its  pages  of  many  misstatements 
concerning  the  nature,  operation,  and  effect  of  burden  of  proof 
and  presumptions  in  which  the  literature  of  those  subjects 
abounds.  Few  direct  references  to  these  errors  will  be  found 
in  the  following  pages.  It  has  been  thought  sufficient  to  state 
what  the  law  is,  not  what  it  is  not. 

II.  Judicial  Notice.     The   principles   of  judicial   notice,    al- 
though fairly  well  settled,  are  none  the  less  important,  and  they 
have  been  more  fully  discussed  in  these  pages,  both  in  theory 
and  in  application,  than  in  any  previous  work  dealing  with  the 
subject  of  evidence. 

III.  Judicial  Admissions.     In  strict  propriety,  "evidence"  of 
a  fact  is  that  which  tends  to  prove  it,  directly  or  by  inference. 
By  this  test,  judicial  admissions  are  not  evidence ;  on  the  con- 
trary, they  affect  merely  the  right  or  the  necessity  of  adducing 
evidence,  and  are  thus  distinguished  from  nonjudicial  admis- 
sions, which  constitute  evidence  of  the  fact  admitted.     They 
are  accordingly  separated  from  the  latter  in  treatment. 

IV.  Estoppel.     The   various   forms   of   estoppel   have   custom- 
arily   been    treated   in   works    on    evidence.     Properly    speaking, 
however,  they  rest  on  principles  of  substantive  law,  and  their 
only  relation  to  the  law  of  evidence  is  their  more  or  less  remote 
effect  on  the  right  or  the  necessity  of  adducing  evidence  con- 
cerning the  fact  as  to  which  the  estoppel  exists.     The  general 
recognition  of  this  truth  has  led  the  author  to  deal  with  them 
but  briefly. 

In  closing  this  preface,  acknowledgment  should  be  made  of 
aid  derived  from  the  fruits  of  the  labors  of  the  late  Professor 
J.  B.  Thayer,  whose  investigations  have  done  so  much  to  dispel 
the  obscurity  and  confusion  surrounding  the  law  of  evidence; 
also,  in  a  lesser  measure,  to  Professor  John  H.  Wigmore ;  and 
Mr.  Herbert  T.  Tiffany  is  entitled  to  mention  for  help  derived 
from  his  admirable  work  on  Real  Property  in  reference  to  the 
so-called  presumption  of  lost  grants. 

L.  L.  H. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

BURDEN  OF  PROOF  AND  PRESUMPTIONS. 

ART.   I.     BURDEN    OF   PROOF. 

A.  General  Nature,  §  1. 

Burden  of  convincing  jury  and  burden  of  adducing  evidence,  §  2. 

B.  General  Operation. 

Necessity  of  making  case  for  jury — Province  of  court  and  of  jury, 
§  3. 

(a)  Nature  of  evidence — Presumptions. 

(b)  Discharge  and  shifting  of  burden  of  adducing  evidence. 
Prima  facie  case — Province  of  court  and  of  jury,  §  4. 

(a)  Nature  of  evidence — Presumptions. 

(b)  Discharge  and  shifting  of  burden  of  convincing  jury  and 

burden  of  adducing  evidence. 

C.  Right  to  Open  and  Close,  §  5. 

D.  Measure  of  Evidence,  §  6. 

(a)  Criminal  cases. 

(b)  Civil  cases. 

E.  Ascertainment,  §  7. 

Ascertainment  of  burden  of  convincing  jury,  §  8. 

(a)  Burden  as  fixed  by  rules  of  substantive  law. 

(b)  Burden  as  fixed  by  rules  of  pleading. 

(c)  Actions  relating  to  contracts. 

(d)  Actions  of  tort. 

(e)  Statute  of  limitations. 

Ascertainment  of  burden  of  adducing  evidence,  §  9. 
(a)  Peculiar  knowledge  of  facts. 

ART.   II.     PRESUMPTIONS. 

A.  Preliminary  Considerations,  §  10. 

B.  Presumptions  of  Fact  and  of  Law,  §  11. 

Presumptions  of  fact,  §  12. 
Presumptions  of  law,  §  13. 


viil  TABLE  OF  CONTENTS. 

(a)  Conclusive  presumptions. 

(b)  Disputable  presumptions. 
Presumptions  for  jury  and  for  court,  §  14. 

C.  Evidential  and  Nonevidential  Presumptions,  §  15 

Evidential  presumptions,  §  16. 

(a)  Origin. 

(b)  Nature. 

(c)  Effect. 

(d)  Mode  of  establishing  facts  founding  presumption. 
Nonevidential  presumptions,  §  17. 

(a)  Nature. 

(b)  Effect. 

D.  Conflict  of  Presumptions,  §  18. 

Presumptions  relating  to  burden  of  convincing  jury,  §  19. 
Presumptions  relating  to  burden  of  adducing  evidence,  §  20. 
Conflict  between  presumptions  relating  to  burden  of  convincing 
jury  and  those  relating  to  burden  of  adducing  evidence,  §  21. 

ART.  III.     PARTICULAR   INSTANCES. 

A.  Preliminary  Considerations,  §  22. 

B.  Authority  and  Regularity,  §  23. 

Appointment,  qualification,  and  authority,  §  24. 
Course  of  business,  §  25. 

(a)  Public  business — Delivery  of  letters  and  telegrams. 

(b)  Private  business. 

Performance  and  regularity  of  official  acts,  §  26. 

(a)  Performance. 

(b)  Regularity. 

(c)  Nature  and  qualifications  of  presumption. 
Judicial  proceedings,  §  27. 

(a)  Jurisdiction. 

(b)  Regularity  of  subsequent  proceedings. 
Corporations,  §  28. 

(a)  Grant  and  acceptance  of  charter — Organization — Consolida- 

tion. 

(b)  Officers — Appointment — Regularity  of  acts. 

(c)  Powers. 
Marriage,  §  29. 

Contracts  and  conveyances,  §  30 

(a)  Consideration. 

(b)  Execution. 

(c)  Delivery. 

(d)  Acceptance. 

(e)  Negotiable  instruments. 

(f)  Alteration  of  instrument. 


TABLE  OF  CONTENTS.  lx 

C.  Capacity  of  Infants. 

Crimes,  §  31. 
Torts,  §  32. 
Contracts,  §  33. 

D.  Continuity. 

General  Rules,  §  34. 
Illustrations,  §  35. 

E.  Conversion,  §  36. 

F.  Fabrication,    Spoliation,    Suppression,   and   Nonproduction   of 

dence. 

General  considerations,  §  37. 
Real  or  demonstrative  evidence,  §  38. 
Documents,  §  39. 
Testimony,  §  40. 
Qualifications  of  rule,  §  41. 
Nature  and  effect  of  presumption,  §  42. 

(a)  Effect  as  to  secondary  evidence. 

(b)  Attempt  to  fabricate,  spoliate,  or  suppress  evidence. 

G.  Fraud,  Duress,  and  Undue  Influence. 

Fraud,  §  43. 

Duress,  §  44. 

Undue  Influence,  §  45. 

(a)  Contracts  and  conveyances. 

(b)  Wills. 

H.  Husband  and  Wife. 

Marital  coercion,  §  46. 

(a)  Crimes. 

(b)  Torts. 

(c)  Modern  statutes. 
Agency,  §  47. 

(a)  Care  of  absentee's  property. 

(b)  Family  necessaries. 

I.  Identity,  §  48. 

J.  Innocence,  Intent,  and  Malice. 
Criminal  cases,  §  49. 

(a)  Innocence. 

(b)  Intent  and  malice. 

(c)  Justification  and  excuse. 
Civil  cases,  §  50. 

(a)  Innocence. 

(b)  Intent 

(c)  Malice, 


x  TABLE  OF  CONTENTS. 

K.  Knowledge  of  Contents  of  Instrument. 
Contracts  and  conveyances,  §  61. 
Wills,  §  52. 

L.  Law. 

Knowledge  of  law,  §  53. 

(a)  Crimes. 

(b)  Torts. 

(c)  Contracts. 

Terms  of  foreign  law,  §  54. 

(a)  Common  law. 

(b)  Statutory  law. 

M.  Legality,  §  55. 
Agency,  §  56. 
Contracts,  §  57. 
•   Marriage,  §  58. 

(a)  Legality  in  general. 

(b)  Common-law  marriage — Cohabitation  and  repute, 

N.  Legitimacy. 

General  rules,  §  59. 

Rebuttal  of  presumption,  §  60. 

0.  Life,  Death,  and  Survivorship. 
Continuance  of  life,  §  61. 
Death  of  absentee,  §  62. 

(a)  Residence  of  absentee. 

(b)  Lack  of  tidings. 

(c)  Time  of  absence. 

(d)  Time  of  death. 

(e)  Rebuttal  of  presumption. 

(f)  Effect  of  presumption. 
Survivorship,  §  63. 

Cause  of  death,  §  64. 

P.  Negligence,  §  65. 

Res  ipsa  loquitur,  §  66. 

(a)  Electric  wires. 

(b)  Falling  objects. 

(c)  Explosions. 

(d)  Railroad  accidents. 

(e)  Master  and  servant. 

(f)  Rebuttal  of  presumption. 
Contributory  negligence,  §  67. 
Bailments,  §  68. 

(a)  Bailees  in  general. 

(b)  Innkeepers. 


TABLE  OP  CONTENTS.  ad 

(c)  Telegraph  companies. 

(d)  Carriers  of  goods. 
Carriers  of  passengers,  §  69. 

(a)  Res  ipsa  loquitur. 

Q.  Parent  and  Child. 
Issue,  §  70. 
Emancipation,  §  71. 
Advancements,  §  72. 
Services  and  support,  §  73. 

R.  Payment,  §  74. 

Lapse  of  time,  §  75. 

(a)  General  rule. 

(b)  Period  of  delay. 

(c)  Rebuttal. 

Payment  by  negotiable  instrument,  §  76. 

(a)  Instrument  of  debtor. 

(b)  Instrument  of  third  person. 

(c)  Accounting  and  settlement. 
Receipt,  §  77. 

Possession  of  obligation,  §  78. 
Cancellation  of  obligation,  §  79. 
Installments,  §  80. 
Application  of  payments,  §  81. 
Time  of  payment,  §  82. 
Payment  or  loan,  §  83. 
Payment  or  security,  §  84. 

S.  Sanity,  §  85. 

Criminal  cases,  §  86. 
Civil  cases,  §  87. 

(a)  Contracts  and  conveyances. 

(b)  Wills. 
Continuance  of  insanity,  §  88. 

T.  Use  and  Possession. 

Presumption  of  ownership  from  mere  possession,  §  89. 

(a)  Personal  property. 

(b)  Real  property. 

Presumption  of  lost  grant  from  circumstantial   evidence,   §   90. 
•   (a)  General  rules. 

(b)  Nature  of  presumption. 

Presumption  of  lost  grant  arising  from  adverse  user  or  posses- 
sion— Prescription,   §  91. 

(a)  Preliminary  considerations. 


xii  TABLE  OF  CONTENTS. 

(b)  Presumption  and  its  extent. 

(c)  Nature  of  presumption. 

(d)  Sufficiency  of  user  or  possession. 
Possession  as  evidence  of  crime,  §  92. 

(a)  Nature  of  presumption. 

(b)  Illustrations. 

(c)  Rebuttal. 

(d)  Sufficiency  of  possession. 

(e)  Possession  as  crime  per  se. 


CHAPTER  II. 

JUDICIAL  NOTICE. 
ART.   I.     DEFINITION   AND   SCOPE,  §  93. 

ART.   II.     GOVERNMENTAL  AFFAIRS. 
A.  Domestic  Government. 

Existence,  extent,  and  subdivisions,  §  95. 

Seal,  §  96. 

Executive  and  administrative  officers,  §  97. 

(a)  Existence,  accession,  and  term  of  office. 

(b)  Powers,  privileges,  and  duties. 

(c)  Acts. 

(d)  Signature  and  seal. 
Legislative  officers,  §  98. 
Judicial  officers — Courts,  §  99. 

(a)  Existence,  seal,  jurisdiction,  and  terms. 

(b)  Records. 

(c)  Practice. 

(d)  Officers. 
Law,  §  100. 

(a)  State  and  federal  law. 

(b)  Statutes. 

(c)  Administrative  rules. 

(d)  Municipal  resolutions  and  ordinances. 

(e)  Common  law. 

(f)  Customs  and  usages. 
Miscellaneous  matters,  §  101. 

(a)  Currency. 

(b)  Post. 


TABLE  OP  CONTENTS.  xiil 

(c)  Census. 

(d)  Elections. 

B.  Foreign  Government. 

Existence,  title,  and  extent,  §  102. 
Flag  and  seal,  §  103. 
Officers  and  courts,  §  104. 
Laws,  §  105. 

(a)  General  rules. 

(b)  Exceptions  and  qualifications.   • 

C.  International  Affairs. 

Law,  §  106. 
Treaties,  §  107. 
War  and  peace,  §  108. 

ART.   III.     MATTERS  OF   NOTORIETY. 

Science,  §  110. 

(a)  Course  of  nature. 

(b)  History. 

(c)  Geography. 
Arts,  §  111. 
Language,  §  112. 
Human  beings,  §  113. 
Animals,  §  114. 
Disease,  §  115. 

Tobacco  and  liquors,  §  116. 
Religious  affairs,  §  117. 
Municipal  affairs,  §  118. 
Railroads,  §  119. 
Electricity,  §  120. 
Banks  and  banking,  §  121. 

ART.   IV.     DISCRETION   OF  COURT,  §  122. 

ART.  V.     PRELIMINARY  INVESTIGATION   BY  COURT. 

Sources  of  information,  §  123. 
Procedure  as  to  investigation,  §  124. 

ART.  VI.  PRIVATE  KNOWLEDGE  OF  COURT,  §  125. 

ART.  VII.  KNOWLEDGE  OF  JURORS. 

Private  knowledge,  §  126. 
Judicial  knowledge,  §  127. 


xiv  TABLE  OF  CONTENTS. 

ART.  VIII.     EFFECT  OF  JUDICIAL   NOTICE. 

Necessity  for  evidence,  §  128. 
Instructions,  §  129. 
Argument  of  counsel,  §  130. 

ART.   IX.     IMPEACHMENT  OF  JUDICIAL   KNOWLEDGE,  §  131. 
ART.   X.     JUDICIAL   NOTICE   ON    APPEAL,      §  132. 


CHAPTER  HI. 

JUDICIAL  ADMISSIONS. 

ART.    I.— GENERAL    CONSIDERATIONS,  §  133. 
ART.   II.     EFFECT   IN   FIRST  TRIAL. 

Admissions  in  proceedings  preliminary  to  trial,  §  134. 
Admissions  in  pleadings,  §  135. 

(a)  Admissions  as  defining  the  issues. 

(b)  Admissions  as  evidence. 

Admissions  in  agreed  facts  and  in  open  court,  §  136. 
Admissions  by  counsel,  §  137. 
Demurrer  to  evidence,  §  138. 
Payment  into  court,  §  139. 

ART.   III.     EFFECT   IN   SECOND   TRIAL,   §   140. 

ART.    IV.     CONSTRUCTION    OF   ADMISSION— INTRODUCTION    OF 
ENTIRE  WRITING,  §  141. 

ART.  V.     WITHDRAWAL  OF  ADMISSION,  §  142. 


CHAPTER  IV. 

ESTOPPEL. 
ART.  I.  GENERAL  CONSIDERATIONS,  §  143. 

ART.  II.  ESTOPPEL  BY  RECORD. 

A.  General  Considerations,  §  144. 

B.  Estoppel  by  Judgment. 

General  considerations,  §  145. 


TABLE  OF  CONTENTS.  XV 

(a)  Record  of  judgment  as  evidence  and  effect  of  judgment  as 

estoppel.  , 

(b)  Judgment  as  bar  to  action  or  defense  and  judgment  as 

proof  of  matter  determined. 

(c)  Relation  of  estoppel  by  judgment  to  law  of  evidence. 
Requisites  of  judgment,  §  146. 

(a)  Character  of  court. 

(b)  Validity  of  judgment. 

(c)  Finality  of  judgment. 

Persons  estopped  and  entitled  to  urge  estoppel,  §  147. 

(a)  General  rule. 

(b)  Real  and  nominal  parties. 

(c)  Corporate  parties. 

(d)  Coparties. 

(e)  Additional  parties. 

(f)  Severance  of  parties. 

(g)  Parties  in  different  capacities, 
(b.)  Evidence  of  identity. 

(I)  Privies. 
Questions  concluded,  §  148. 

(a)  General  rule. 

(b)  Identity  of  cause  of  action. 

(c)  Identity  of  matter  in  dispute. 

(d)  Incidental  and  collateral  matters. 

(e)  Necessity  of  actual  determination. 

(f)  Evidence  of  identity. 

(g)  Burden  of  proof. 

(h)  Province  of  court  and  of  jury. 

ART.   III.     ESTOPPEL   BY   DEED. 
-General  considerations,  §  149. 
Estoppel  as  to  pre-existing  title,  §  150. 

(a)  Grantor. 

(b)  Grantee. 

Estoppel  as  to  after-acquired  title,  §  151. 

(a)  General  rule. 

(b)  Necessity  and  effect  of  covenants  for  title. 

(c)  Estoppel  as  conveyance  of  title. 
Estoppel  as  to  facts  recited,  §  152. 

(a)  Recitals  binding  grantee. 

(b)  Recitals  of  conclusions  of  law. 

(c)  Certainty — General  and  particular  recitals. 

(d)  Materiality — Collateral  matters. 


xvl  TABLE  OF  CONTENTS. 

Persons  estopped  and  entitled  to  urge  estoppel,  §  153. 

(a)  Parties  to  deed. 

(b)  Privies. 

(c)  Strangers  to  deed — Mutuality  of  estoppel. 
Execution,  validity,  and  construction  of  deed,  §  154. 

(a)  Execution,  delivery,  and  acceptance.    . 

(b)  Modification. 

(c)  Validity. 

(d)  Construction — Truth  appearing  on  face  of  deed. 
Estoppel  against  estoppel,  §  155. 

ART.   IV.     ESTOPPEL   BY   CONTRACT. 

General  considerations,  §  156. 

Facts  settled  by  contract,  §  157. 

(a)  General  rule. 

(b)  Existence  and  power  of  corporation. 

(c)  Intention  of  parties. 

Acts  done  under  contract — Possession,  §  158. 

(a)  Grantor  and  grantee. 

(b)  Vendor  and  purchaser. 

(c)  Landlord  and  tenant. 

(d)  Bailor  and  bailee. 

ART.  V.     ESTOPPEL  BY  MISREPRESENTATION. 

Preliminary  considerations,  §  159. 

(a)  Rule  of  estoppel. 

(b)  Pleading — Province  of  court  and  jury. 

(c)  Estoppel  to  assert  illegality. 

(d)  Land  titles — Statute  of  frauds. 

(e)  Who  may  be  estopped. 

Requisites  of  estoppel,  §  160. 

(a)  Existence  of  misrepresentation. 

(b)  Misrepresentation  of  third  person. 

(c)  Indirect  misrepresentation. 

(d)  Misrepresentation  of  opinion  and  intention. 

(e)  Fraudulent  intent. 

(f)  Carelessness. 

(g)  Change  of  position — Reliance  on  misrepresentation — Injury, 
(h)  Ground  for  anticipating  change  of  position. 


LAW    OF    EVIDENCE. 


CHAPTER  I. 

BURDEN  OF  PROOF  AND  PRESUMPTIONS. 

ART.     I.  BURDEN  OF  PROOF. 

ART.    II.  PRESUMPTIONS. 

ART.  III.  PARTICULAR  INSTANCES. 

ART.   I.     BURDEN    OF   PROOF. 

A.  General  Nature,  §  1. 

Burden  of  convincing  jury  and  burden  of  adducing  evidence,  §  2. 

B.  General  Operation. 

Necessity  of  making  case  for  jury — Province  of  court  and  of  jury, 
§  3. 

(a)  Nature  of  evidence — Presumptions. 

(b)  Discharge  and  shifting  of  burden  of  adducing  evidence. 
Prima  facie  case — Province  of  court  and  of  jury,  §  4. 

(a)  Nature  of  evidence — Presumptions. 

(b)  Discharge  and  shifting  of  burden  of  convincing  jury  and 

burden  of  adducing  evidence. 

C.  Right  to  Open  and  Close,  §  5. 

D.  Measure  of  Evidence,  §  6. 

(a)  Criminal  cases. 

(b)  Civil  cases. 

E.  Ascertainment,  §  7. 

Ascertainment  of  burden  of  convincing  jury,  §  8. 

(a)  Burden  as  fixed  by  rules  of  substantive  law. 

(b)  Burden  as  fixed  by  rules  of  pleading. 

(c)  Actions  relating  to  contracts. 

(d)  Actions  of  tort. 

(e)  Statute  of  limitations. 

Ascertainment  of  burden  of  adducing  evidence,  §  9. 
(a)  Peculiar  knowledge  of  facts. 

Hammon,   Ev. — 1. 


LAW  OF  EVIDENCE. 


A.  GENERAL,  NATURE. 


§ 


§  1.  A  party  litigant,  in  order  to  succeed,  must  prove  his 
"case";  that  is  to  say,  he  must  establish  the  existence  of 
every  disputed  fact  essential  to  the  rights  which  he  asserts. 
These  facts  must  be  established  in  the  minds  of  the  jury  or 
the  court,  according  to  whether  the  case  is  tried  with  or  with- 
out a  jury.1  The  "case"  which  must  be  proved  may  consist 
either  in  a  cause  of  action  or  in  an  affirmative  defense, — 

i  Burden  of  proof  operates  in  all  sorts  of  trials  of  fact,  whether  be- 
fore the  court  alone,  or  the  court  and  a  jury.  Trials  to  the  court  alone 
are,  however,  to  be  distinguished  from  trials  of  questions  of  law.  In 
these  latter,  burden  of  proof  as  a  legal  conception  does  not  come  into 
operation.  It  is  limited  to  trials  of  questions  of  fact. 

When  a  question  of  fact  is  framed  for  trial, — that  is,  when  the  issues 
are  made  up, — a  double  burden  generally  rests  on  the  proponent: 
First,  he  must,  in  the  beginning,  adduce  sufficient  evidence  to  justify 
a  verdict  in  his  favor;  and,  second,  he  must  ultimately  convince  the 
jury  of  the  existence  of  the  disputed  facts  upon  which  he  bases  his 
rights.  Even  though  the  issues  of  fact  are  clearly  defined,  yet  the 
jury  may  not  render  a  verdict  until  evidence  has  been  submitted  to 
them.  They  may  render  a  verdict  only  upon  the  evidence,  and  in'  ac- 
cordance with  it.  To  obtain  a  verdict,  therefore,  the  proponent  must 
adduce  evidence  sufficient  to  convince  the  jury  of  the  truth  of  his  con- 
tentions. The  same  is  true,  mutatis  mutandis,  of  cases  tried  to  the 
court  alone. 

As  to  questions  of  law  the  case  is  different.  No  burden  of  proof,  in  a 
legal  sense,  rests  upon  either  party.  When  the  parties  come  to  issue 
on  a  question  of  law  alone,  and  submit  the  matter  to  the  court  in  the 
proper  way,  as  where,  for  instance,  a  pleading  is  demurred  to,  the  court 
is  bound  to  ascertain  the  law  applicable  to  the  case,  and  decide  ac- 
cordingly. Having  submitted  the  case  for  decision,  neither  party  is 
under  any  necessity  to  do  more.  The  court  cannot  render  judgment 
against  a  party  merely  because  he  refuses  to  adduce  authorities  and 
argue  his  case.  One  party  may  argue  the  day  out,  and  the  other  may 
sit  supinely  by  and  yet  win.  The  only  penalty  a  party  pays  for  failing 
to  adduce  authorities  in  support  of  his  position  is  the  risk  he  runs  that 
the  court's  knowledge  of  the  law  is  inadequate;  for  whether  he  adduces 
authorities  or  not,  the  court  must  decide  the  case,  and  decide  in  ac- 
cordance with  its  knowledge  of  the  law,  howsoever  and  wheresoever 
obtained. 


§  2  BURDEN  OF  PROOF.  3 

meaning  by  the  latter  a  defense  raised  by  plea  in  confession 
and  avoidance.  In  the  first  instance  the  burden  rests  on  the 
plaintiff;  in  the  second  it  rests  on  the  defendant.  The  rules 
affecting  the  necessity  of  proving  a  case  are  the  same  in 
either  event.  The  plaintiff,  seeking  to  establish  a  cause  of 
action  which  has  been  denied,  and  the  defendant,  seeking  to 
establish  an  affirmative  defense  which  has  been  denied,  stand 
each  in  the  same  position  with  regard  to  the  necessity  of 
convincing  the  jury  of  the  truth  of  their  respective  conten- 
tions. In  this  general  discussion  the  term  "proponent"  may 
therefore  be  applied,  as  a  matter  of  convenience,  to  the  party 
upon  whom  this  burden  rests,  regardless  of  whether  he  is  the 
party  plaintiff  or  defendant,  and  his  adversary,  whether  plain- 
tiff or  defendant,  may  be  termed  the  "opponent." 

The  necessity  resting  on  a  party  of  proving  his  case  is 
commonly  called  the  "burden  of  proof,"  and  here  it  becomes 
necessary  to  draw  a  distinction  between  two  different  mean- 
ings of  that  term.  The  courts  have  not,  as  a  rule,  been  dis- 
criminative in  this  regard,  and,  in  consequence,  there  is  much 
apparent  confusion  in  the  subject.  To  avoid  that  confusion, 
so  far  as  possible,  terms  more  nearly  descriptive  will  be  used 
in  these  pages. 

§  2.    Burden  of  convincing  jury    and  burden  of  adducing 
evidence. 

As  the  term  is  used  in  the  law,  "burden  of  proof"  has  two 
meanings.  It  may  denote,  first,  the  necessity,  resting  upon 
one  party  alone,  of  proving  his  case, — that  is,  the  necessity 
of  convincing  the  jury,  when  all  is  said  and  done,  of  the 
existence  of  the  disputed  facts  upon  which  he  rests  his  right 
.to  relief;  second,  it  may  mean  the  necessity,  resting,  as  the 
case  proceeds,  now  on  one  party,  now  on  the  other,  of  going 
forward  with  the  trial  by  adducing  evidence  that  has  a  tend- 


4  LAW   OF  EVIDENCE.  §   2 

ency  to  prove  some  particular  fact,  without  regard  to  whether 
it  is  one  of  those  put  in  issue  by  the  pleadings,  or  is  only  a 
detail  of  the  issue.2 

To  discharge  the  burden  in  its  first  sense,  the  proponent 
must  not  only  adduce  evidence;  he  must  also  convince  the 
jury  of  the  truth  of  his  contention  after  all  the  evidence  is  in. 
Consequently,  if  the  evidence  is  in  equilibrium,  the  jury  must 
find  against  him.  The  first  is  therefore  a  burden  of  "proving," 
in  the  proper  sense  of  the  word.  To  discharge  the  burden 
in  its  second  sense,  the  party  upon  whom  it  rests  need  not  con- 
vince the  jury  of  the  truth  of  his  contention;  he  need  only 
adduce  evidence  that,  in  the  'opinion  of  the  court,  has  a  tend- 
ency to  convince  them,  and  that  consequently  operates  to 
relieve  him  of  the  necessity  of  going  forward  with  the  trial. 
The  second  is  not,  therefore,  a  burden  of  proving,  but  only  a 
burden  of  adducing  evidence  that  tends  to  prove. 

The  burden  of  proof,  in  the  first  and  proper  sense,  is  fixed 
by  the  issue,  which,  under  normal  conditions,  is  made  up  before 
the  case  comes  to  trial.  Once  thus  fixed,  it  does  not  shift  or 
vary  in  the  progress  of  the  trial.  The  party  upon  whom  it 
rests  in  the  beginning  must  sustain  it  to  the  end,  and  it  is  not 
discharged  until  he  has  convinced  the  jury  of  the  truth  of 
the  disputed  facts  upon  which  he  bases  his  rights.3  It  thus 

2Abrath  v.  N.  E.  R.  Co.,  11  Q.  B.  Div.  440,  456,  Thayer,  Cas.  Ev.  78; 
Scott  v.  Wood,  81  Cal.  398,  400;  Baxter  v.  Camp,  71  Conn.  245,  71  A.  S. 
R.  169;  Egbers  v.  Egbers,  177  111.  82,  88;  Buswell  v.  Fuller,  89  Me. 
600;  Sperry  v.  Wilcox,  1  Mete.  (Mass.)  267;  Morgan  v.  Morse,  13  Gray 
(Mass.)  150;  Bell  v.  Skillicorn,  6  N.  M.  399,  404. 

s  See  note  26,  infra,  for  cases.  In  exceptional  cases  the  defendant 
is  allowed  to  prove  an  affirmative  defense  under  the  general  issue.  On 
the  face  of  the  pleadings,  therefore,  the  plaintiff  has  the  burden  of  proof 
proper;  but  when  the  defendant  comes  to  establish  his  affirmative  de- 
fense, the  burden  of  proof  proper  is  found  to  rest  on  him.  It  is  there- 
fore said  that  the  burden  must  have  shifted.  This  state  of  affairs 
does  not  conflict  with  the  general  proposition  stated  in  the  text.  The 


§  2  BURDEN  OF  PROOF.  5 

exists  independent  of  and  distinct  from  the  burden  of  adducing 
evidence,  which  does  not  remain  stationary  throughout  the 
trial,  but  may  rest,  now  on  one  nartv.  now  on  the  other,  accord- 
ing to  the  weisrht  of  the  evidence  adduced,  now  by  one  party, 
now  by  the  other,  as  the  trial  proceeds.  In  view  of  this  fact, 
the  terms  "proponent"  and  "opponent"  may  serve  to  name 

explanation  is  that,  under. the  loose  mode  of  pleading  which  permits 
an  affirmative  defense  to  be  proved  under  the  general  issue,  the  issues 
of  fact  are  not  made  up  before  the  trial,  as  is  usually  the  case.  On  the 
contrary,  they  are  not  finally  fixed  until  the  affirmative  defense  is  dis- 
closed; "and  the  sense  in  which  we  say  that  the  burden  of  proof  has 
shifted  is  that  loose  sense  in  which,  under  a  strict  rule  of  pleading,  it 
might  be  said  to  shift  while  the  pleadings  are  going  forward, — being 
first  upon  the  plaintiff,  'shifting'  to  the  defendant  when  he  pleads  in 
confession  and  avoidance,  and  remaining  fixed  at  the  end  where  the 
last  purely  negative  plea  leaves  it.  In  both  cases  the  burden  of  estab- 
lishing 'shifts'  only  because  a  new  affirmative  case  has  been  disclosed 
which  carries  with  it  the  duty  of  making  it  out.  In  reality  there  is  no 
shifting  at  all,  because  the  issue  is  not  yet  settled.  It  remains  just 
as  true  as  ever,  as  regards  the  issue,  that  the  burden  of  establishing 
it  never  shifts;  it  is  always  upon  the  actor.  It  is,  therefore,  merely 
a  careless  mode  of  expression,  when  new  issues  are  allowed  to  be  de- 
veloped at  the  trial,  to  say  that  the  burden  of  establishing  shifts  during 
the  trial."  Thayer,  Prel.  Treat.  Ev.  378. 

If  defendant  pleads  the  general  issue,  and  also  a  plea  in  confession 
and  avoidance,  plaintiff  bears  the  burden  of  proof  on  the  one  issue, 
and  defendant  bears  it  on  the  other.  Plaintiff  must  convince  the  jury 
of  the  existence  of  the  facts  alleged  in  his  declaration.  Defendant  must 
convince  them  of  the  existence  of  the  facts  set  forth  in  his  affirmative 
plea.  When  the  trial  of  the  first  issue  closes,  the  burden  of  proof  as  to 
the  second  has  been  said  to  shift  to  defendant.  Probate  Judge  v.  Stone, 
44  N.  H.  593.  This,  however,  is  a  loose  mode  of  expression.  It  is 
true  that  defendant  has  the  burden  of  proof  under  his  plea  in  con- 
fession and  avoidance,  but  it  has  not  "shifted"  to  him  in  the  trial.  It 
was  cast  on  him  the  moment  the  issues  became  finally  fixed  by  the 
pleadings.  Plaintiff  all  along  bears  the  burden  of  proof  under  the  com- 
plaint. Defendant  all  along  bears  the  burden  of  proof  under  the  plea 
in  confession  and  avoidance.  There  is  no  shifting  of  either  of  these 
burdens  in  the  course  of  the  trial.  Each  bears  his  respective  burden 
until  the  jury  find  their  verdict. 


LAW   OF   EVIDENCE.  8   2 

o    *• 

the  party  upon  whom  the  burden  of  convincing  rests  and  his 
adversary,  respectively,  regardless  of  which  one  bears  the 
burden  of  adducing  evidence. 

The  proponent,  as  a  rule. "enters  upon  the  trial  under  tne 
necessity,  not  only  of  establishing  his  entire  case  in  the  minds 
of  the  jury,  but  also  of  adducing  evidence  having  a  tendency 
to  establish  the  various  facts  going  to  make  up  his  case,  and, 
to  sustain  the  first  burden,  he  must '  discharge  the  second.4 
When  he  has  discharged  the  second  burden,  then,  as  we  shall 
see,  it  sometimes  shifts  to  the  other  party,  and  he  in  turn 
must  adduce  evidence  which  tends  to  defeat  the  effect  of  that 
introduced  by  the  proponent.5  There  is  much  apparent  con- 
flict of  authority  upon  the  question  whether  the  burden  of 
proof  may  be  said  to  shift,  but  a  close  reading  of  the  cases 
does  away  with  the  greater  part  of  it.  Most  of  the  cases  fall 
into  one  or  the  other  of  two  classes :  First,  cases  wherein  the 
court  drops  the  dictum  in  general  discussion,  without  distin- 
guishing between  the  two  meanings  of  "burden  of  proof,"  the 
distinction  between  the  two  meanings  being  of  no  importance 
in  disposing  of  the  case  in  hand;  second,  cases  wherein  the 
court  uses  the  term  "burden  of  proof"  as  meaning  the  neces- 
sity of  adducing  evidence  sufficient  to  take  the  case  to  the 
jury  in  the  first  instance,  or,  subsequently,  to  dispel  the  con- 
clusiveness  of  a  prima  facie  case.  Cases  of  the  first  class  are 
of  little  importance,  and  do  not  weigh  heavily  against  the  well- 
informed  opinions  that  support  the  view  taken  in  these  pages. 
Cases  of  the  second  class  are  not  in  conflict  with  this  view; 
the  difference  is  a  purely  verbal  one.6 

*  Section  3,  infra. 

The  proponent  may  be  relieved  from  the  burden  of  adducing  evidence 
in  the  beginning  by  some  rule  of  judicial  notice  or  some  rule  of  pre- 
sumption, or,  more  properly  speaking,  because  of  some  such  rule,  the 
burden  of  adduction  may  not  rest  upon  him  in  the  first  instance. 

6  See  cases  cited  in  note  25,  infra. 


§  3  BURDEN  OF  PROOF.  7 

B.  GENERAL,  OPERATION. 

§  3.    Necessity  of  making  case  for  jury — Province  of  court 
and  of  jury. 

The  distinction  between  the  burden  of  proof  in  its  proper 
sense  and  the  burden  of  adducing  evidence  tending  to  prove  is 
best  drawn  by  noting  the  operation  of  these  two  conceptions  in 
the  trial.7 

The  burden  of  proof,  i.  e.,  the  burden  of  convincing,  having 
been  determined,  and  the  burden  of  adducing  evidence  being 
for  the  moment  upon  the  same  party,  what  must  the  pro- 
ponent do  to  succeed?  The  least  he  can  do  with  success  is  to 
adduce  evidence  which  is  "sufficient,"  as  the  phrase  goes,  "to 
take  the  case  to  the  jury";8  that  is  to  say,  he  must  not  only 
adduce  evidence  which  is  legally  admissible,  but  he  must  ad- 
duce it  in  such  quantity  that  the  jury,  as  reasonable  men,  may 
be  justified  in  finding  a  verdict  in  his  favor.  His  evidence 
must  not  be  so  weak  nor  so  incomplete  that  the  court,  on 
motion  for  new  trial,  would  be  legally  obliged  to  set  aside 
any  number  of  verdicts  for  him  as  unwarranted  by  the  evi- 
dence.9 If  the  proponent  does  not  meet  this  requirement,  then 

«  See  In  re  Barber's  Estate,  63  Conn.  393,  22  L.  R.  A.  90,  96. 

i  See  Thayer,  Prel.  Treat.  Ev.  369,  370,  376,  et  seq.;  Wigmore,  Greenl. 
Ev.  §  14. 

s  This  is  sometimes  termed  a  prima  facie  case.  Reg.  v.  O'Doherty,  6 
State  Tr.  (N.  S.)  831/873;  People  v.  Cannon,  139  N.  Y.  32,  36  A.  S.  R. 
668.  But  that  term  is  more  properly  applied  to  a  different  state  of  the 
evidence.  See  §  4,  infra. 

o  Metropolitan  R.  Co.  v.  Jackson,  3  App.  Gas.  193;  Jewell  v.  Parr,  13 
C.  B.  909;  Manning  v.  J.  H.  Mut.  Life  Ins.  Co.,  100  U.  S.  693;  Janin 
v.  L.  &  S.  F.  Bank,  92  Cal.  14.  27  A.  S.  R.  82;  Wabash,  St.  L.  &  P.  R. 
Co.  v.  Locke,  112  Ind.  404.  2  A.  S.  R.  193;  Wormell  v.  Me.  Cent.  R.  Co., 
79  Me.  397,  1  A.  S.  R.  321.  326;  Benoit  v.  T.  &  L.  R.  Co.,  154  N.  Y.  223; 
Storey  v.  Brennan.  15  N.  Y.  524.  69  A.  D.  629;  Brown  v.  Schock,  77  Pa. 
471,  479. 

It  was  formerly  said  that  a  mere  scintilla  of  evidence  was  sufficient 
to  take  the  case  to  the  Jury.  Whiteford  v.  Burckmyer,  1  Gill  (Md.) 


8  LAW   OF   EVIDENCE.  §  3 

the  court,  as  supervisor  of  the  jury,  may  take  the  case  from 
them,  and  dispose  of  it  as  a  matter  of  law.  If  the  proponent 
is  the  plaintiff,  the  court  disposes  of  the  case  by  granting  a 
nonsuit,  or  dismissing  the  complaint,  or  granting  a  motion  to 
exclude  the  entire  evidence  from  the  jury,  or  sustaining  a 
demurrer  to  the  evidence,  or  peremptorily  instructing  the  jury 
to  find  for  the  defendant.10  If  the  proponent  is  the  defend- 
ant, the  case  is  disposed  of  by  a  peremptory  instruction  to  find 

127,  39  A.  D.  640;  Pittsburgh  Bank  v.  Whitehead,  10  Watts  (Pa.)  397, 
36  A.  D.  186.  But  that  rule  no  longer  obtains.  Marion  County  Com'rs 
v.  Clark,  94  U.  S.  278,  284;  Offutt  v.  World's  Columbian  Exp.,  175  111. 
472;  Bearce  v.  Bass,  88  Me.  521,  51  A.  S.  R.  446;  Linkauf  v.  Lombard, 
137  N.  Y.  417,  33  A.  S.  R.  743;  Cable  v.  Southern  R.  Co.,  122  N.  C.  892; 
Heh  v.  Consolidated  Gas  Co.,  201  Pa.  443,  88  A.  S.  R.  819.  And  see 
Denny  v.  Williams,  5  Allen  (Mass.)  1,  5. 

10  ENGLAND:  Davey  v.  L.  &  S.  W.  R.  Co.,  12  Q.  B.  Div.  70;  Ryder  v. 
Wombwell,  L.  R.  4  Exch.  32;  Toomey  v.  L.,  B.  &  S.  C.  R.  Co.,  3  C.  B. 
(N.  S.)  146;  Giblin  v.  McMullen,  L.  R.  2  P.  C.  317. 

UNITED  STATES:     Elliott  v.  C.,  M.  &  St.  P.  R.  Co.,  150  U.  S.  245. 

ALABAMA:     Louisville  &  N.  R.  Co.  v.  Binion,  98  Ala.  570. 

ABKANSAS:     Catlett  v.  Ry.  Co.,  57  Ark.  461,  38  A.  S.  R.  254. 

CALIFORNIA:     Mateer  v.  Brown,  1  Cal.  221,  52  A.  D.  303. 

COLORADO:     Murray  v.  D.  &  R.  G.  R.  Co.,  11  Colo.  124  (statute). 

CONNECTICUT:     Chillingworth  v.  Eastern  Tinware  Co.,  66  Conn.  306. 

ILLINOIS:  Bartelott  v.  International  Bank,  119  111.  259;  Blanchard  v. 
L.  S.  &  N.  S.  R.  Co.,  126  111.  416,  9  A.  S.  R.  630;  Schuermann  v.  Dwell- 
ing-House Ins.  Co.,  161  111.  437,  52  A.  S.  R.  377. 

INDIANA:     Burns  v.  Smith,  29  Ind.  App.  181,  94  A.  S.  R.  268. 

MARYLAND:     Sprigg  v.  Moale,  28  Md.  497,  92  A.  D.  698. 

MASSACHUSETTS:     Com.  v.  Hardiman,  9  Gray,  136. 

MICHIGAN:  Hunt  v.  Chosen  Friends,  64  Mich.  671,  8  A.  S.  R.  855; 
Mynning  v.  D.,  L.  &  N.  R.  Co.,  64  Mich.  93,  8  A.  S.  R.  804. 

MISSOURI:  Hite  v.  Metropolitan  St.  R.  Co.,  130  Mo.  132,  51  A.  S.  R. 
555. 

NEW  YORK:     Deyo  v.  N.  Y.  Cent.  R.  Co.,  34  N.  Y.  9,  88  A.  D.  418. 

PENNSYLVANIA:     Farley  v.  Phila.  Traction  Co.,  132  Pa.  58. 

TEXAS:     Joske  v.  Irvine,  91  Tex.  574. 

WEST  VIRGINIA:  Woolwine's  Adm'r  v.  C.  &  O.  R.  Co.,  36  W.  Va.  329, 
32  A.  S.  R.  859. 


§  3a 


BURDEN  OF  PROOF.  Q 


for  the  plaintiff,"  or,  if  the  defense  involves  a  counterclaim, 
by  a  dismissal  of  it,  the  same  as  if  it  were  a  complaint. 

Assume  now,  on  the  other  hand,  that  the  proponent  satisfies 
the  requirement  under  discussion  by  adducing  evidence  suffi- 
cient to  take  the  case  to  the  jury.  The  determination  of  the 
truth  of  his  case  is  now  taken  out  of  the  hands  of  the  court, 
and  placed  with  the  jury  ;12  and  this  is  so,  though  the  opponent 
offers  no  evidence  by  way  of  denial  or  avoidance,  since  the 
evidence  we  are  now  assuming  to  have  been  adduced  is  only 
sufficient  to  take  the  case  to  the  jury,  and  not  such  as  to  require 
a  verdict  for  the  proponent  as  a  matter  of  law.  While  the 
opponent  may,  and  usually  does,  dispute  or  avoid  the  pro- 
ponent's evidence,  he  is  not  bound  to  do  so.  The  jury  may 
disbelieve  the  proponent's  case  without  counter  evidence,  or,  in 
the  case  of  circumstantial  evidence,  they  may  believe  that  the 
evidentiary  facts  exist,  and  yet  not  be  convinced  of  the  exist- 
ence of  the  ultimate  fact  to  be  deduced  therefrom.  The  only 
effect  of  the  failure  of  the  opponent  to  adduce  evidence  in 
rebuttal  of  a  case  sufficient,  and  merely  sufficient,  to  go  to 
the  jury,  is  therefore  the  risk  he  runs  that  the  jury  may  be- 
lieve the  proponent's  evidence  and  find  in  his  favor.13 

(a)  Nature  of  evidence — Presumptions.  Evidence  sufficient 
to  take  the  case  to  the  jury  may  be  either  direct  or  indirect, 

"North  Pa.  R.  Co.  v.  Commercial  Bank,  123  U.  S.  727;  In  re  Shell's 
Estate,  28  Colo.  167,  53  L.  R.  A.  387;  Anthony  v.  Wheeler,  130  111.  128, 
17  A.  S.  R.  281;  Moore  v.  Baker,  4  Ind.  App.  115,  51  A.  S.  R.  203; 
Fornes  v.  Wright,  91  Iowa,  392,  396;  Moore  v.  McKenney,  83  Me.  80,  23 
A.  S.  R.  753;  Burke  v.  First  Nat.  Bank.  61  Neb.  20,  87  A.  S.  R.  447. 

"Dublin,  W.  &  W.  R.  Co.  v.  Slattery,  3  App.  Cas.  1155;  Chicago 
G.  W.  R.  Co.  v.  Price,  97  Fed.  423;  Phoenix  Assur.  Co.  v.  Lucker,  77 
Fed.  243;  Cable  v.  Southern  R.  Co.,  122  N.  C.  892;  Cox  v.  Royal  Tribe, 
42  Or.  365,  60  L.  R.  A.  620;  Holland  v.  Kindregan,  155  Pa.  156  (sem- 
ble) ;  Evans  v.  Chamberlain,  40  S.  C.  104. 

is  wait  v.  McNeil,  7  Mass.  261;  Kavanagh  v.  Wilson,  70  N.  Y.  177, 
179.  And  see  Quock  Ting  v.  U.  S.,  140  U.  S.  417;  Gannon  v.  Laclede 
Gas  Light  Co.,  145  Mo.  502,  43  L.  R.  A.  505. 


10  LAW   OF  EVIDENCE.  §  35. 

and  the  latter  sort  includes  that  form  of  circumstantial  evi- 
dence known  as  "presumptions  of  fact."14  It  is  elsewhere 
shown  that  the  substantial  difference  between  presumptions  of 
law  and  of  fact  is  that  the  former  are  not  assumptions,  but 
mere  inferences  drawn  from  evidentiary  facts,  while  the  latter 
are  not  inferences,  but  more  or  less  arbitrary  assumption* 
sanctioned  by  rules  'of  law.16  Whether  a  presumption  of  law 
shall  be  indulged  is  a  question  for  the  court,  regardless  of  the 
opinion  of  the  jury  as  to  the  actual  existence  of  the  assumed 
fact.  Whether  a  presumption  of  fact  shall  be  drawn  is  a 
question  for  the  jury,  unhampered  by  the  opinion  of  the  court. 

The  only  presumptions,  therefore,  that  are  embraced  in  evi- 
dence sufficient,  and  merely  sufficient,  to  take  the  case  to  the 
jury,  are  presumptions  of  fact, — that  is,  such  as  the  jury  may 
or  may  not  indulge,  in  their  discretion ;  not  such,  as  they  must 
indulge  by  direction  of  the  court,  regardless  of  their  own 
opinion. 

(b)  Discharge  and  shifting  of  burden  of  adducing  evidence. 
When  the  proponent  has  introduced  evidence  sufficient,  and 
only  sufficient,  to  take  the  case  to  the  jury,  he  has  discharged 
the  burden  of  adducing  evidence  which  rested  on  him  in 
^the  beginning,  and  he  may  therefore  rest  his  case.  The  bur- 
den of  proof  still  rests  upon  him,  however,  and,  in  order  to 
win  his  case,  he  must,  after  all  the  evidence  is  in,  convince 
the  jury  of  the  existence  of  the  facts  on  which  he  rests  his 
right  to  relief. 

While  the  proponent,  by  introducing  evidence  sufficient,  and 
only  sufficient,  to  take  the  case  to  the  jury,  discharges  the 
burden  of  adducing  evidence  which  has  theretofore  rested  on 

i*  It  follows  that  the  presumption  will  support  a  verdict  unfavorable 
to  the  party  against  whom  it  operates.  State  v.  Fox,  80  Iowa,  312,  20 
A.  S.  R.  425;  Com.  v.  York,  9  Mete.  (Mass.)  93,  43  A.  D.  373;  Green  v. 
State,  28  Miss.  687. 

15  Sections  11-14,  infra. 


§  4 


BURDEN  OF  PROOF. 


him,  he  does  not  thereby  shift  that  burden  to  the  shoulders  of 
his  opponent.16  The  opponent  is  not  required  to  go  forward 
with  the  trial  by  adducing  evidence  in  denial  or  in  avoidance 
of  the  proponent's  case,  since,  under  the  circumstances  as- 
sumed, the  proponent  has  not  made  a  prima  facie  case.  The 
only  effect  of  the  opponent's  failure  to  adduce  such  evidence 
is  the  risk  he  runs  that  the  jury  may  believe  the  proponent's 
evidence,  and  bring  in  a  verdict  for  him.17 

§  4.    Prima  facie  case  —  Province  of  court  and  of  jury. 

Where  a  proponent,  i.  e.,  the  party  having  the  burden  of 
proof  in  its  proper  sense,  also  bears  the  burden  of  commencing 
the  trial  by  adducing  evidence  tending  to  prove  his  case,  the 
least  that  he  can  do  with  success,  it  has  just  been  seen,  is  to 
adduce  evidence  sufficient,  and  merely  sufficient,  to  take  the 
case  to  the  jury.  He  may,  and  often  does,  however,  do  more. 
He  may  adduce  evidence  in  such  quantity  or  of  such  quality 
that  the  jury,  as  reasonable  men,  would  be  required  to  find 
a  verdict  in  his  favor.  His  evidence  may  be  so  full  and  satis- 
factory that  but  one  conclusion  would  be  justified,  so  that 
the  court,  if  a  verdict  were  found  against  him,  would  be  com- 
pelled to  set  it  aside,  on  motion  for  new  trial,  as  contrary  to 
the  evidence.  In  this  event  the  proponent's  evidence  is  not 
only  sufficient  to  take  the  case  to  the  jury;  it  carries  the  case 
past  the  jury,  so  to  speak,  and  places  it  again  in  the  hands 
of  the  court.  Unless,  therefore,  the  opponent  has  evidence  to 
offer  by  way  of  denial  or  avoidance,  the  court  must  per- 
emptorily instruct  the  jury  to  find  for  the  proponent.18  By 
adducing  evidence,  whether  direct  or  indirect,  which  thus 

ie  Klein  v.  German  Nat.  Bank,  69  Ark.  140,  86  A.  S.  R.  183;  People  v. 
Flnley,  38  Mich.  482,  485. 

"  See  cases  cited  in  note  13,  supra. 

is  Schaefer  v.  St.  L.  &  S.  R.  Co.,  128  Mo.  64,  72.  And  see  Angelo  v. 
People,  96  111.  209,  36  A.  R.  132. 


12  LAW  OF  EVIDENCE.  §  4a 

requires  a  verdict  in  his  favor,  the  proponent  is  said  to  make 
a  "prima  facie  case."  By  this  term,  evidence  requiring  a 
verdict  for  the  proponent  may  conveniently  be  distinguished 
from  evidence  which  is  merely  sufficient  to  take  the  case  to 
the  jury.19 

(a)  Nature  of  evidence — Presumptions.  A  prima  facie  case, 
i.  e.,  evidence  requiring  a  verdict  for  the  proponent,  may  con- 
sist of  either  direct  or  indirect  evidence,  and  the  latter  sort  may 
be  said  to  include  an  important  outgrowth  from  it,  namely,  pre- 
sumptions of  law.  If  a  proponent  adduces  evidence  of  facts 
giving  rise  to  a  presumption  of  law  in  his  favor,  then  the  bur- 
den of  overcoming  the  presumption — that  is,  the  burden  of  ad- 
ducing evidence  to  the  contrary — is  cast  on  the  opponent,  and, 
unless  he  discharges  this  burden  by  adducing  evidence  which 
tends  to  overthrow  the  presumption,  the  case  will  be  disposed 
of  by  the  court  as  a  matter  of  law  in  favor  of  the  proponent.20 

loAbrath  v.  N.  E.  R.  Co.,  11  Q.  B.  Div.  440,  456,  Thayer,  Cas.  Ev. 
78,  80;  Banbury  Peerage  Case,  1  Sim.  &  S.  153,  Thayer,  Cas.  Ev.  45; 
St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Taylor,  57  Ark.  136;  Metropolitan  St. 
R.  Co.  v.  Powell,  89  Ga.  601;  Graves  v.  Colwell,  90  111.  612;  Young  v. 
Miller,  145  Ind.  652;  Wilder  v.  Cowles,  100  Mass.  487,  488;  Burnham  v. 
Allen,  1  Gray  (Mass.)  496,  500;  Broult  v.  Hanson,  158  Mass.  17; 
Crowninshield  v.  Crowninshield,  2  Gray  (Mass.)  524,  Thayer,  Cas.  Ev. 
100,  104;  Jones  v.  Stevens,  5  Mete.  (Mass.)  373,  378;  Cent.  Bridge 
Corp.  v.  Butler,  2  Gray  (Mass.)  130,  131;  Smith  v.  Burrus,  106  Mo.  94, 
27  A.  S.  R.  329;  Shepardson  v.  Perkins,  60  N.  H.  76;  Farmers'  L.  & 
T.  Co.  v.  Siefke,  144  N.  Y.  354,  359. 

Evidence  which  is  merely  sufficient  to  take  the  case  to  the  jury  has 
sometimes  been  termed  "prima  facie  evidence,"  to  distinguish  it  from 
evidence  which  is  merely  admissible,  and  not  sufficient  to  take  the  case 
to  the  jury;  but  this  is  not  the  general  use  of  the  term.  See  note  8, 
supra. 

20  Thayer,  Prel.  Treat.  Ev.  380,  383 ;  Williams  v.  East  India  Co.,  3  East, 
192,  199;  Pickup  v.  Thames  &  M.  Ins.  Co.,  3  Q.  B.  Div.  594,  Thayer,  Cas. 
Ev.  106,  109;  Agnew  v.  U.  S.,  165  U.  S.  36,  50;  State  v.  Hoyt,  47  Conn. 
518,  541;  State  v.  Lee,  69  Conn.  186;  Donahue  v.  Coleman,  49  Conn.  464; 
Metropolitan  St.  R.  Co.  v.  Powell,  89  Ga.  601;  Graves  v.  Colwell,  90  I1L 


§   4a  BURDEN  OF  PROOF.  13 

If  the  presumption  is  a  conclusive  one,  the  only  way  in  which 
the  opponent  can  overcome  it  is  to  adduce  evidence  in  disproof 
of  the  facts  upon  which  it  is  founded.  If,  however,  the  pre- 
sumption is  a  disputable  one,  then  it  may  be  dispelled  by  evi- 
dence in  denial  of  the  fact  assumed,  as  well  as  in  denial  of  the 
facts  giving  rise  to  the  presumption. 

It  is  to  be  observed  that  the  only  presumptions  that  make 
a  prima  facie  case  are  presumptions  of  law,  since,  as  has  been 
seen,  presumptions  of  fact  are  mere  inferences  which  the  jury 
may  or  may  not  draw,  as  to  them  seems  proper.21 

A  prima  facie  case  exists  in  its  most  pronounced  form  in 
the  presumption  of  law,  but  this  is  only  one  of  its  forms.  It 
may  exist  as  well  in  direct  evidence,  or  in  a  general  mass  of 
circumstantial  evidence  not  giving  rise  to  a  legal  presump- 
tion, and  in  this  event  the  effect  is  the  same;  the  burden  of 
adducing  evidence  to  the  contrary  is  cast  on  the  opponent,  and, 
unless  he  discharges  that  burden,  the  court  is  bound  to  direct 
a  verdict  for  the  proponent.22 

612;  Angelo  v.  People,  96  111.  209,  36  A.  R.  132;  Louisville,  N.  A.  &  C. 
R.  Co.  v.  Thompson,  107  Ind.  442,  57  A.  R.  120,  122;  Jones  v.  Granite 
State  F.  Ins.  Co.,  90  Me.  40;  Market  &  F.  Nat.  Bank  v.  Sargent,  85  Me. 
349,  35  A.  S.  R.  376;  Com.  v.  Eddy,  7  Gray  (Mass.)  583;  Powers  v.  Rus- 
sell, 13  Pick.  (Mass.)  69,  76,  Thayer,  Cas.  Ev.  74;  Crowninshield  v. 
Crowninshield,  2  Gray  (Mass.)  524,  Thayer,  Cas.  Ev.  100,  105;  People 
v.  Garbutt,  17  Mich.  9,  97  A.  D.  162,  169;  Yarnell  v.  Moore,  ?  Coldw. 
(Tenn.)  173. 

It  is  otherwise  in  criminal  cases  in  New  York.  People  v.  Cannon, 
139  N.  Y.  32,  36  A.  S.  R.  668,  Thayer,  Cas.  Ev.  92. 

A  presumption  constitutes  prima  facie  evidence  of  a  fact  which  has 
been  pleaded,  the  same  as  of  a  fact  not  pleaded.  Ritchie  v.  Carpenter, 
2  Wash.  St.  512,  26  A.  S.  R.  877. 

21  Sections  3 (a),  supra,  and- 12-14,  infra. 

22  Union  Pac.  R.  Co.  v.  McDonald,  152  U.  S.  262;   Mugler  v.  Kansas, 
123  U.  S.  623,  674;  Morrow  Shoe  Mfg.  Co.  v.  N.  E.  Shoe  Co.,  18  U.  S. 
App.  256,  616,  24  L.  R.  A.  417;   Wilcox  v.  Henderson,  64  Ala.  535;  Mc- 
Cormick  v.  Holmes,  41  Kan.  265;   Delano, v.  Bartlett,  6  Gush.   (Mass.) 
364,  367;  Hemingway  v.  State,  68  Miss.  371;  Shepardson  v.  Perkins,  60 


14  LAW   OF   EVIDENCE.  §   4b 

(b)  Discharge  and  shifting  of  burden  of  convincing  jury 
and  burden  of  adducing  evidence.  When  a  prima  facie  case 
has  been  made, — that  is,  when  evidence  requiring  a  verdict 
for  the  proponent  has  been  introduced,  and  nothing  is  of- 
fered in  rebuttal, — the  burden  of  proof  in  its  proper  sense 
does  not  come  into  operation,  since  it  is  the  duty  of  the 
<jourt  to  dispose  of  the  case  by  directing  a  verdict  for  the 
proponent;  consequently,  in  these  circumstances,  the  burden 
of  proof  is  not  discharged,  nor  is  it  shifted  to  the  opponent. 

With  regard  to  the  burden  of  adducing  evidence,  however, 
the  law  is  different.  When  a  prima  facie  case  has  been  made, 
the  proponent  has  not  only  discharged  the  burden  of  adduc- 
tion; he  has  gone  further  and  shifted  it  to  his  opponent.  If 
the  opponent  would  win,  he  must  therefore  go  forward  with 
the  trial  and  adduce  evidence  in  denial  or  in  avoidance  of 
the  case  made  by  the  proponent.  If  he  does  not  do  this,  the 
€ourt  is  bound  to  direct  a  verdict  against  him.  If,  however, 
he  does  discharge  the  burden  of  adduction  by  offering  such 
evidence,  then  the  proponent's  prima  facie  case  is  dispelled, 
and  the  truth  of  the  fact  in  issue  is  to  be  determined  by  the 
jury  on  all  the  evidence. 

When  the  burden  of  adduction  is  thus  cast  on  the  opponent, 
he  s'tands  in  the  same  position  with  reference  to  it  as  the 
proponent  stood  in  when  the  burden  rested  on  him,  and  the 
future  process  is  the  same.  First,  then,  the  opponent  must 
adduce  sufficient  evidence  in  rebuttal  to  take  his  case  to  the 
jury.  Whether  or  not  the  burden  of  adduction  has  been  dis- 
charged by  the  opponent  at  any  given  stage  in  the  proceed- 
ings— that  is,  whether  or  not  sufficient  evidence  has  been  ad- 
duced to  take  his  case  to  the  jury — is  a  question  addressed 
to  the  court.  If  the  court  deems  the  opponent's  evidence 

N.  H.  76,  83;  Eaton  v.  Alger{  47  N.  Y.  345,  351.     Contra,  Anniston  Nat. 
Bank  v.  School  Committee,  121  N.  C.  107  (statute). 


§  4b  BURDEN  OF  PROOF.  15 

insufficient  to  justify  a  reasonable  man  in  believing  in  his 
contention,  so  that  a  verdict  in  his  favor  would  be  unwar- 
ranted by  the  evidence,  then  the  court  is  bound  to  direct  a 
verdict  in  favor  of  the  proponent.  If,  on  the  other  hand,  the 
•court  deems  the  opponent's  evidence  sufficient  to  justify  a 
verdict  for  him,  then  the  burden  of  adduction  resting  on  him 
has  been  discharged,  and  the  court  must  submit  the  case  to 
the  jury  for  them  to  determine  under  all  the  evidence.  Such 
is  the  law  where  the  opponent  does  no  more  than  to  adduce 
evidence  sufficient  to  take  his  case  to  the  jury;  and  it  is  to  be 
observed  that  in  this  case  the  burden  of  adduction  does  not 
shift  back  to  the  proponent. 

The  opponent  may,  however,  go  further.  He  may  adduce 
evidence  which  is  not  only  sufficient  to  take  his  case  to  the 
jury,  but  of  such  force  as  to  require  a  verdict  in  his  favor, 
in  the  absence  of  evidence  in  surrebuttal.  In  this  event  the 
decision  of  the  case  becomes  a  question  for  the  court  for  the 
time  being,  and,  unless  the  proponent  adduces  evidence  in 
denial  or  in  avoidance  of  the  opponent's  case,  the  court  is 
bound  to  instruct  the  jury  peremptorily  to  return  a  verdict 
for  the  opponent.  By  making  a  prima  facie  case,  therefore, 
the  opponent  not  only  discharges  the  burden  of  adduction  rest- 
ing on  him,  but  shifts  it  to  the  shoulders  of  the  proponent,  who 
must  accordingly,  if  he  would  win,  go  forward  with  the  evi- 
dence.23 

Whether  or  not  the  burden  of  adduction  shall  shift  at  all 
depends  upon  the  weight  of  the  evidence  adduced.  So  often 
as  it  shifts,  just  so  often  must  it  be  met  and  discharged,  if 
the  party  on  whom  it  rests  would  win  his  case.  So  long  as  a 
party  does  no  more  than  to  adduce  evidence  which  is  merely 
sufficient  to  take  the  case  to  the  jury,  the  burden  of  adduction 

as  Angelo  v.  People,  96  111.  209,  36  A.  R.  132. 


IQ  LAW   OF  EVIDENCE.  §  4b 

does  not  shift  ;24  but  the  moment  he  goes  further,  and  adduces 
evidence  which  not  only  justifies  but  requires  a  verdict  in 
his  favor,  then  the  burden  of  adduction  is  shifted  to  the  other 
party,  who  must  accordingly  dispel  the  case  so  made  against 
him.25 

24  Section  3(b),  supra. 

25  ENGLAND:     Pickup  v.  T.  &  M.  M.  Ins.  Co.,  3  Q.  B.  Div.  594,  Thayer, 
Gas.  Ev.  106,  109;  Abrath  v.  N.  E.  R.  Co.,  11  Q.  B.  Div.  440,  Thayer, 
Cas.  Ev.  78. 

UNITED  STATES:  Smith  v.  Sac  County,  11  Wall.  139;  Morrow  Shoe 
Mfg.  Co.  v.  N.  E.  Shoe  Co.,  18  U.  S.  App.  256,  616,  24  L.  R.  A.  417;  The 
Bronx,  86  Fed.  808;  Agnew  v.  U.  S.,  165  U.  S.  36,  50;  Jones  v.  Simpson, 
116  U.  S.  609;  Empire  Transp.  Co.  v.  Phila.  &  R.  C.  &  I.  Co.,  40  U.  S. 
App.  157,  35  L.  R.  A.  623. 

ALABAMA:     Wilcox  v.  Henderson,  64  Ala.  535. 

ARKANSAS:     St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Taylor,  57  Ark.  136. 

CALIFORNIA:     Scott  v.  Wood,  81  Cal.  398,  401. 

CONNECTICUT:  Pease  v.  Cole,  53  Conn.  53,  55  A.  R.  53,  64;  State  v. 
Lee,  69  Conn.  186,  197;  Baxter  v.  Camp,  71  Conn.  245,  71  A.  S.  R.  169. 

GEORGIA:     Metropolitan  St.  R.  Co.  v.  Powell,  89  Ga.  601. 

ILLINOIS:  Kitner  v.  Whitlock,  88  111.  513;  Egbers  v.  Egbers,  177  I1L 
82;  Graves  v.  Colwell,  90  111.  612. 

KENTUCKY:     Howat  v.  Howat's  Ex'r,  19  Ky.  L.  R.  756,  41  S.  W.  771. 

MAINE:     Woodcock  v.  Calais,  68  Me.  244. 

MASSACHUSETTS:  Powers  v.  Russell,  13  Pick.  69,  Thayer,  Cas.  Ev.  74, 
75;  Jones  v.  Stevens,  5  Mete.  373,  378;  Burnham  v.  Allen,  1  Gray,  496, 
501;  Spaulding  v.  Hood,  8  Gush.  602,  606. 

MICHIGAN:     Walker  v.  Detroit  Transit  R.  Co.,  47  Mich.  338. 

MISSISSIPPI:     Hemingway  v.  State,  68  Miss.  371. 

MISSOURI:  Schaefer  v.  St.  L.  &  S.  R.  Co.,  128  Mo.  64;  Gay  v.  Gillilan, 
92  Mo.  250,  1  A.  S.  R.  712,  719. 

NEW  JERSEY:     Adoue  v.  Spencer,  62  N.  J.  Eq.  782,  56  L.  R.  A.  817. 

NEW  YORK:  Heinemann  v.  Heard,  62  N.  Y.  448,  455;  Isham  v.  Post, 
141  N.  Y.  100,  38  A.  S.  R.  766;  Farmers'  L.  &  T.  Co.  v.  Siefke,  144  N. 
Y.  354,  359;  Caldwell  v.  N.  J.  Steamboat  Co.,  47  N.  Y.  282. 

PENNSYLVANIA:     Com.  v.  Gerade,  145  Pa.  289,  27  A.  S.  R.  689. 

TENNESSEE:     Yarn  ell  v.  Moore,  3  Coldw.  173. 

TEXAS:  Clark  v.  Hills,  67  Tex.  141;  Smith  v.  Gillum,  80  Tex.  120; 
Holder  v.  State,  35  Tex.  Cr.  App.  19. 

WEST  VIRGINIA:     Butler  v.  Thompson,  45  W.  Va.  660,  72  A.  S.  R.  838. 


§  4b  BURDEN  OF  PROOF.  17 

This  process  continues  until  all  the  evidence  is  in;  that  is, 
until  the  trial  comes  to  a  close  either  by  the  failure  of  one 
party  or  the  other  to  discharge  the  burden  of  adduction  rest- 
ing for  the  time  on  him,  or  by  one  party  or  the  other  having 
discharged  the  burden  by  adducing  evidence,  not  such  as  to 
require  a  verdict  in  his  favor,  but  merely  sufficient  to  justify 
such  a  verdict.  When  this  stage  is  reached,  the  burden  of 
adduction  disappears  and  is  heard  of  no  more.  But  the  bur- 
den of  proof,  in  its  proper  sense,  still  exists,  and  operates  still 
against  the  same  party  who  was  charged  with  it  in  the  begin- 
ning, requiring  him,  in  order  to  win,  to  convince  the  jury  of 
the  truth  of  his  contentions  by  means  of  the  entire  body  of 
evidence  before  them.26  If,  therefore,  the  evidence  as  to  the 

2«  ENGLAND:  Pickup  v.  T.  &  M.  M.  Ins.  Co.,  3  Q.  B.  Div.  594,  Thayer, 
Gas.  Ev.  106,  109;  Sutton  v.  Sadler,  3  C.  B.  (N.  S.)  87,  Thayer,  Cas. 
Ev.  97;  Abrath  v.  N.  E.  R.  Co.,  11  Q.  B.  Div.  440,  Thayer,  Cas.  Ev.  78. 

UNITED  STATES:     The  Bronx,  86  Fed.  808. 

CALIFORNIA:     Scott  v.  Wood,  81  Cal.  398. 

CONNECTICUT:  In  re  Barber's  Estate,  63  Conn.  393,  22  L.  R.  A.  90,  95; 
Pease  v.  Cole,  53  Conn.  53,  55  A.  R.  53,  63;  Baxter  v.  Camp,  71  Conn. 
245,  71  A.  S.  R.  169. 

ILLINOIS:     Egbers  v.  Egbers,  177  111.  82;  Gizler  v.  Witzel,  82  111.  322. 

INDIANA:     Young  v.  Miller,  145  Ind.  652. 

MAINE:  Jones  v.  Granite  State  F.  Ins.  Co.,  90  Me.  40;  Woodcock  v. 
Calais,  68  Me.  244;  Buswell  v.  Fuller.  89  Me.  600,  602. 

MASSACHUSETTS:  Huntington  v.  Shute,  180  Mass.  371,  91  A.  S.  R.  309; 
Morgan  v.  Morse,  13  Gray,  150;  Spaulding  v.  Hood,  8  Cush.  602,  606; 
Wright  v.  Wright,  139  Mass.  177;  Starratt  v.  Mullen,  148  Mass.  570; 
Phipps  v.  Mahon,  141  Mass.  471;  Blanchard  v.  Young,  11  Cush.  341; 
Willett  v.  Rich,  142  Mass.  356,  56  A.  R.  684,  687;  Powers  v.  Russell,  13 
Pick.  69,  Thayer,  Cas.  Ev.  74;  Simpson  v.  Davis,  119  Mass.  269,  20  A. 
R.  324;  Delano  v.  Bartlett,  6  Cush.  364;  Gibson  v.  International  Trust 
Co.,  177  Mass.  100,  52  L.  R.  A.  928,  929;  Broult  v.  Hanson,  158  Mass. 
17;  Crowninshield  v.  Crowninshield,  2  Gray,  524,  Thayer,  Cas.  Ev.  100; 
Nichols  v.  Munsel,  115  Mass.  567;  Central  Bridge  Corp.  v.  Butler,  2 
Gray,  130, 132;  Gay  v.  Bates,  99  Mass.  263. 

MISSOURI:  Dowell  v.  Guthrie,  99  Mo.  653,  17  A.  S.  R.  598;  Schaefer  v. 
St.  L.  &  S.  R.  Co.,  128  Mo.  64,  71. 

Hammon,  Ev. — 2. 


18  LAW   OF  EVIDENCE.  §  5 

disputed  facts  is  evenly  balanced,  so  that  the  jury  are  in 
doubt  as  to  the  truth  of  the  matter,  the  proponent  has  failed 
to  discharge  the  burden  of  proof,  and  the  jury  must  find 
against  him.27 

C.  RIGHT  TO  OPEN  AND  CLOSE. 

§  5.  In  the  absence  of  some  statute  or  some  rule  of  practice 

NEW  HAMPSHIRE:     Shepardson  v.  Perkins,  60  N.  H.  76. 

NEW  YORK:  Caldwell  v.  N.  J.  Steamboat  Co.,  47  N.  Y.  282;  Blunt  v. 
Barrett,  124  N.  Y.  117;  Kay  v.  Metropolitan  St.  R.  Co.,  163  N.  Y.  447; 
Farmers'  L.  &  T.  Co.  v.  Siefke,  144  N.  Y.  354;  Heinemann  v.  Heard,  62 
N.  Y.  448. 

RHODE  ISLAND:  Sweeney  v.  Metropolitan  Life  Ins.  Co.,  19  R.  I.  171, 
61  A.  S.  R.  751. 

TENNESSEE:     East  Tenn.,  V.  &  G.  R.  Co.  v.  Stewart,  13  Lea,  432,  438. 

TEXAS:  Jester  v.  Steiner,  86  Tex.  415,  419;  Clark  v.  Hills,  67  Tex. 
141. 

VERMONT :     Williams  v.  Robinson,  42  Vt.  658,  1  A.  R.  359,  362. 

WISCONSIN:     Atkinson  v.  Goodrich  Transp.  Co.,  69  Wis.  5. 

See,  also,  note  3,  supra. 

The  rule  is  the  same  in  criminal  cases.     Section  49 (a),  infra. 

si  Thayer,  Prel.  Treat.  Ev.  369. 

ENGLAND:  Abrath  v.  N.  E.  R.  Co.,  11  Q.  B.  Div.  440,  Thayer,  Gas.  Ev. 
78;  Hingeston  v.  Kelly,  18  L.  J.  Exch.  360,  Thayer,  Gas.  Ev.  76. 

ALABAMA:  Birmingham  Union  R.  Co.  v.  Hale,  90  Ala.  8,  24  A.  S.  R. 
748;  Lehman  v.  McQueen,  65  Ala.  570;  Wilcox  v.  Henderson,  64  Ala. 
535. 

CALIFORNIA:     Pendleton  v.  Cline,  85  Gal.  142. 

ILLINOIS:     Watt  v.  Kirby,  15  111.  200. 

INDIAN  TERRITORY:     Robinson  v.  Nail,  2  Ind.  T.  509. 

INDIANA:     Young  v.  Miller,  145  Ind.  652,  656. 

IOWA:     Oaks  v.  Harrison,  24  Iowa,  179. 

MAINE:     Jones  v.  Granite  State  F.  Ins.  Co.,  90  Me.  40. 

MASSACHUSETTS:  Burnham  v.  Allen,  1  Gray,  496,  501;  Broult  v.  Han- 
son, 158  Mass.  17. 

NEBRASKA:  Fremont,  E.  &  M.  V.  R.  Co.  v.  Harlin,  50  Neb.  698,  61  A. 
S.  R.  578. 

NEW  HAMPSHIRE:     Lisbon  v.  Lyman,  49  N.  H.  553,  563. 

NEW  YORK:     Rogers  v.  Traders'  Ins.  Co.,  6  Paige,  583. 

PENNSYLVANIA:     Kaine  v.  Weigley,  22  Pa.  179,  184. 

TEXAS:  Mexican  Cent.  R.  Co.  v.  Lauricella,  87  Tex.  277,  47  A.  S.  R. 
103. 


§  5  BURDEN  OF  PROOF.  19 

to  the  contrary,28  the  burden  of  proof,  in  the  proper  sense 
of  the  term,  carries  with  it  the  incidental  right  to  begin  and 
reply.  The  proponent — that  is,  the  party  who  has  the  burden 
of  convincing  the  jury  of  the  facts  on  which  he  rests  his  right 
to  relief — has  the  right  to  open  and  close  the  case  by  way  of 
adducing  evidence  and  argument  in  support  of  his  demands.29 

28  In  Massachusetts  the  plaintiff  has  the  right  to  open  and  to  close, 
regardless  of  the  issues  and  of  the  burden  of  proof  proper.     Hurley  v. 
O'Sullivan,  137  Mass.  86;   Dorr  v.  Tremont  Nat.  Bank,  128  Mass.  349, 
358;  Page  v.  Osgood,  2  Gray,  260;  Robinson  v.  Hitchcock,  8  Mete.  64,  66. 

In  some  states  the  right  to  open  and  close  rests  with  the  party  who 
would  lose  if  no  evidence  were  given  on  either  side.  Dille  v.  Lovell, 
37  Ohio  St.  415.  This  rule  was  doubtless  adopted  on  the  theory  that 
the  question  of  which  party  would  lose  if  no  evidence  at  all  were 
given  affords  a  test  for  determining  the  party  who  has  the  burden  of 
proof  in  its  proper  sense  of  burden  of  convincing.  The  fallacy  of  this 
supposition  is  elsewhere  shown.  Section  9,  infra. 

See,  generally,  7  Current  Law,  257. 

29  ENGLAND:     Doe  d.  Worcester  Trustees  v.  Rowlands,  9  Car.  &  P. 
734;  Ashby  v.  Bates,  15  Mees.  &  W.  589;  Geach  v.  Ingall,  14  Mees.  &  W. 
95;  Huckman  v.  Fernie,  3  Mees.  &  W.  505,  514,  517;  Stormont  v.  Water- 
loo L.  &  C.  Assur.  Co.,  1  Fost.  &  F.  22;   Leete  v.  Gresham  Life  Ins. 
Soc.,  7  Eng.  Law  &  Eq.  578,  15  Jur.  1161;   Amos  v.  Hughes,  1  Moody 
&  R.  464. 

UNITED  STATES:     Cheesman  v.  Hart,  42  Fed.  98. 

ARKANSAS:     St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Taylor,  57  Ark.  136. 

CONNECTICUT:  Livingston's  Appeal,  63  Conn.  68,  71;  Scott  v.  Hull,  8 
Conn.  296;  Comstock  v.  Hadlyme  EC.  Soc.,  8  Conn.  254,  20  A.  D.  100. 

GEORGIA:  Ransone  v.  Christian,  56  Ga.  351;  Evans  v.  Arnold,  52  Ga, 
169. 

ILLINOIS:  Carpenter  v.  First  Nat.  Bank,  119  111.  352;  Harp  v.  Parr, 
168  111.  459,  477;  Rigg  v.  Wilton,  13  111.  15,  54  A.  D.  419. 

INDIANA:  Wright  v.  Abbott,  85  Ind.  154;  Rothrock  v.  Perkinson,  61 
Ind.  39;  Heilman  v.  Shanklin,  60  Ind.  424;  Kent  v.  White,  27  Ind.  390, 
392;  Stayner  v.  Joyce,  120  Ind.  99. 

KANSAS:  Baughman  v.  Baughman,  32  Kan.  538;  Stith  v.  Fullinwider, 
40  Kan.  73. 

KENTUCKY:  Crabtree  v.  Atchison,  93  Ky.  338;  American  Ace.  Co.  v. 
Reigart,  94  Ky.  547,  42  A.  S.  R.  374;  Lieb  v.  Craddock,  87  Ky.  525; 
Royal  Ins.  Co.  v.  Schwing,  87  Ky.  410. 

MICHIGAN:     Taff  v.  Hosmer,  14  Mich.  309. 


20  LAW   OF  EVIDENCE.  §  ga 

D.  MEASURE  OF  EVIDKNCE. 

§  6.  Brief  attention  may  be  given  rules  concerning  the 
measure,  quantity,  or  degree  of  evidence  required  by  law  to 
persuade  the  jury  of  the  existence  of  the  facts  on  which  the 
proponent  rests  his  right  to  judgment.  Though  closely  allied 
with  burden  of  proof  in  the  proper  sense  of  that  term,  meas- 
ure of  evidence  is  a  separate  and  distinct  idea.  Rules  as  to 
burden  of  proof  determine  which  party  rests  under  the  neces- 
sity of  convincing  the  jury  of  the  existence  of  the  facts  on 
which  he  bases  his  right  to  relief.  Rules  as  to  measure  of  evi- 
dence determine  the  amount  or  degree  of  evidence  which  that 
party  must  adduce  in  order  to  satisfy  and  discharge  the  bur- 
den of  proof.  The  one,  therefore,  relates  to  the  necessity  of 
adducing  evidence  as  a  means  of  establishing  asserted  facts, 
while  the  other  relates  to  the  sufficiency  of  the  evidence  thus 
adduced. 

(a)  Criminal  cases.  In  criminal  cases  the  state  is  charged 
with  the  burden  of  persuading  the  jury  of  the  prisoner's  guilt 
beyond  a  reasonable  doubt,  as  the  phrase  goes.30  The  rule 

MISSOUEI:  Tingley  v.  Cowgill,  48  Mo.  291;  Bates  v.  Forcht,  89  Mo. 
121. 

.    NEBRASKA:     Seebrock  v.   Fedawa,   30  Neb.  424;    Olds  Wagon  Co.  v. 
Benedict,  25  Neb.  372. 

NEW  HAMPSHIRE:  Hardy  v.  Merrill,  56  N.  H.  227,  22  A.  R.  441;  Pro- 
bate Judge  v.  Stone,  44  N.  H.  593;  Seavy  v.  Dearborn,  19  N.  H.  351. 

NEW  YORK:  Murray  v.  N.  Y.  Life  Ins.  Co.,  85  N.  Y.  236;  Lake  On- 
tario Nat.  Bank  v.  Judson,  122  N.  Y.  278. 

NORTH  CAROLINA:     Love  v.  Dickerson,  85  N.  C.  5. 

PENNSYLVANIA:  Blume  v.  Hartman,  115  Pa.  32,  2  A.  S.  R.  525;  Rich- 
ards v.  Nixon,  20  Pa.  19. 

SOUTH  CAROLINA:     Moses  v.  Gatewood,  5  Rich.  Law,  234. 

WISCONSIN:     Dahlman  v.  Hammel,  45  Wis.  466. 

However,  the  fact  that  a  statute  gives  one  party  in  a  particular  pro- 
ceeding the  right  to  open  and  close  does  not  place  the  burden  of  proof 
on  him.  Ex  parte  Newman,  38  Tex.  Cr.  App.  165,  70  A.  S.  R.  740. 

so  Miles  v.  U.  S.,  103  U.  S.  304;  Bennett  v.  State,  86  Ga.  401,  22  A.  S. 
R.  465;  French  v.  State,  12  Ind.  670,  74  A.  D.  229;  People  v.  Finley,  38 


§  ga  BURDEN  OF  PROOF.  21 

is  the  same  in  a  prosecution  for  defamation  by  charging  an- 
other with  crime.  Unless  the  evidence  is  such  as  to  convince 
the  jury,  beyond  a  reasonable  doubt,  that  the  prosecuting  wit- 
ness is  innocent  of  the  crime  attributed  to  him  by  the  accused, 
their  verdict  must  be  for  acquittal.31 

The  question  whether  sanity  or  insanity  may  be  established 
by  a  preponderance  of  the  evidence,  or  must  be  proved  beyond 
a  reasonable  doubt,  presents  a  conflict  of  authority  which  is 
closely  related  to  the  question  of  burden  of  proof  as  to  those 
facts.32  In  some  jurisdictions  the  accused  is  obliged  to  prove 
insanity  beyond  a  reasonable  doubt.  A  preponderance  of  the 
evidence  is  not  sufficient  to  entitle  him  to  an  acquittal.33  In 
other  jurisdictions  he  may  and  must  establish  insanity  by  a 
preponderance  of  the  evidence.  He  is  not,  on  the  one  hand, 
required  to  convince  the  jury  of  insanity  beyond  a  reasonable 
doubt,  yet,  on  the  other  hand,  he  is  not  entitled  to  an  acquittal 
upon  adducing  evidence  which  merely  raises  a  reasonable 
doubt  of  his  sanity.34  In  yet  other  jurisdictions  the  accused 

Mich.  482;  Burt  v.  State,  72  Miss.  408,  48  A.  S.  R.  563;  Tiffany  v.  Com., 
121  Pa.  165,  6  A.  S.  R.  775;  State  v.  Hoxsie,  15  R.  I.  1,  2  A.  S.  R.  838; 
Billard  v.  State,  30  Tex.  367,  94  A.  D.  317;  Vaughan  v.  Com.,  85  Va. 
671;  8  Current  Law,  189. 

siMcArthur  v.  State,  59  Ark.  431;  State  v.  Bush,  122  Ind.  42;  State 
v.  Wait,  44  Kan.  310. 

32  Section  86,  infra. 

as  state  v.  West,  Houst.  Cr.  Gas.  (Del.)  371;  State  v.  Pratt,  Houst. 
Cr.  Cas.  (Del.)  249;  State  v.  Spencer,  21  N.  J.  Law,  196;  State  v.  Han- 
sen,  25  Or.  391  (statute).  The  same  doctrine  has  been  announced  in 
other  cases  also,  which,  however,  have  been  overruled. 

The  contrary  is  held  in  People  v.  McCann,  16  N.  Y.  58,  69  A.  D.  642, 
and  other  cases  cited  in  the  two  succeeding  notes.  The  later  New 
Jersey  cases  seem  to  disregard  State  v.  Spencer,  21  N.  J.  Law,  196. 
See  note  34.  infra. 

84  ALABAMA:  Parsons  v.  State,  81  Ala.  577,  60  A.  R.  193;  Ford  v. 
State,  71  Ala.  385;  Boswell  v.  State,  63  Ala.  307,  35  A.  R.  20,  overruling 
State  v.  Marler,  2  Ala.  43,  36  A.  D.  398;  Maxwell  v.  State,  89  Ala.  150. 


22  LAW   OF  EVIDENCE.  §   (Ja 

is  not  required  to  establish  insanity  either  beyond  a  reason- 
able doubt  or  by  a  preponderance  of  the  evidence.     It  is  suffi- 

ABKANSAS:  Williams  v.  State,  50  Ark.  511;  Boiling  v.  State,  54  Ark. 
588. 

CALIFORNIA:  People  v.  McNulty,  93  Cal.  427;  People  v.  Ward,  105  Gal. 
335;  People  v.  Messersmith,  61  Cal.  246;  People  v.  Coffman,  24  Cal. 
230;  People  v.  Bawden,  90  Cal.  195;  People  v.  Allender,  117  Cal.  81. 

IOWA:  State  v.  Trout,  74  Iowa,  545,  7  A.  S.  R.  499  (semble) ;  State 
v.  Jones,  64  Iowa,  349. 

KENTUCKY:     Phelps  v.  Com.,  17  Ky.  L.  R.  706,  32  S.  W.  470. 

LOUISIANA:  State  v.  Scott,  49  La.  Ann.  253,  36  L.  R.  A.  721,  over- 
ruling State  v.  De  Ranee,  34  La.  Ann.  186,  44  A.  R.  426. 

MAINE:     State  v.  Lawrence,  57  Me.  574. 

MASSACHUSETTS:     Com.  v.  Eddy,  7  Gray,  583. 

MISSOUBI:  State  v.  Redemeier,  71  Mo.  173,  36  A.  R.  462;  State  v. 
McCoy,  34  Mo.  531,  86  A.  D.  121. 

NEVADA:  State  v.  Lewis,  20  Nev.  333;  State  v.  Hartley,  22  Nev.  342, 
28  L.  R.  A.  33. 

NEW  JEKSEY:  Clawson  v.  State,  59  N.  J.  Law,  434;  Graves  v.  State, 
45  N.  J.  Law,  347,  46  A.  R.  778. 

OHIO:     Kelch  v.  State,  55  Ohio  St.  146,  60  A.  S.  R.  680;  Bond  v.  State, 

23  Ohio  St.  349. 

PENNSYLVANIA:     Com.  v.  Bezek,  168  Pa.  603. 

SOUTH  CAROLINA:  State  v.  Alexander,  30  S.  C.  74,  14  A.  S.  R.  879; 
State  v.  Paulk,  18  S.  C.  514. 

TEXAS:  Fisher  v.  State,  30  Tex.  App.  502;  Leache  v.  State,  22  Tex. 
App.  279. 

UTAH:     People  v.  Dillon,  8  Utah,  92. 

A  fair  preponderance  of  evidence  of  insanity  is  all  that  is  required 
of  accused.  A  clear  preponderance  is  not  necessary.  Coyle  v.  Com., 
100  Pa.  573,  45  A.  R.  397;  Com.  v.  Gerade,  145  Pa.  289,  27  A.  S.  R.  689. 

In  some  states  the  accused  must  prove  insanity  to  the  satisfaction 
of  the  jury.  McAllister  v.  State,  17  Ala.  434,  52  A.  D.  180;  State  v. 
Bruce,  48  Iowa,  530;  Com.  v.  Rogers,  7  Mete.  (Mass.)  500,  41  A.  D. 
458;  State  v.  Schaefer,  116  Mo.  96;  Baccigalupo  v.  Com.,  33  Grat.  (Va.) 
807,  36  A.  R.  795;  Dejarnette  v.  Com.,  75  Va.  867. 

In  Georgia  it  is  held  that,  "in  order  to  render  the  distinctive  defense 
of  insanity  available  as  a  basis  for  an  acquittal,  the  burden  is  on  the 
accused  to  show  affirmatively,  by  a  preponderance  of  the  evidence  in- 
troduced at  the  trial,  that  he  was  insane  at  the  time  the  act  for  which 
he  is  indicted  was  committed.  Though  this  burden  may  not  be  suc- 
cessfully carried,  so  as  to  authorize  a  verdict  of  not  guilty  on  this  par- 


§   6a  BURDEN  OF  PROOF.  23 

cient  to  require  an  acquittal  if  the  evidence  adduced  either 
by  him  or  by  the  state  raises  a  reasonable  doubt  of  his  sanity.35 
A  crime  may  be  proved  by  indirect  or  circumstantial  evi- 
dence,36 but  in  this  event  all  the  evidentiary  facts  must  be 
consistent  with  each  other,  and  the  evidence  as  a  whole  must 
be  not  only  consistent  with  the  accused's  guilt,  but  incon- 
sistent with  any  other  rational  conclusion.37  And  every  cir- 

ticular  ground,  it  is  nevertheless  the  duty  of  the  jury  to  consider  the 
evidence  touching  the  alleged  insanity  in  connection  with  the  other  evi- 
dence in  the  case,  and  then,  in  view  of  it  all,  determine  whether  or  not 
a  reasonable  doubt  of  the  guilt  of  the  accused  exists  in  their  minds." 
Ryder  v.  State,  100  Ga.  528,  38  L.  R.  A.  721. 

35  UNITED  STATES:     Davis  v.  U.  S.,  160  U.  S.  469,  Thayer,  Gas.  Ev.  90. 

COLORADO:     Jones  v.  People,  23  Colo.  276. 

CONNECTICUT:     State  v.  Johnson,  40  Conn.  136. 

FLORIDA:  Hodge  v.  State,  26  Fla.  11;  Armstrong  v.  State,  30  Fla. 
170,  17  L.  R.  A.  484;  Id.,  27  Fla.  366,  26  A.  S.  R.  72. 

ILLINOIS:  Hopps  v.  People,  31  111.  385,  83  A.  D.  231;  Lilly  v.  People, 
148  111.  467;  Dacey  v.  People,  116  111.  555. 

INDIANA:  Plummer  v.  State,  135  Ind.  308;  Guetig  v.  State,  66  Ind. 
94,  32  A.  R.  99;  Plake  v.  State,  121  Ind.  433,  16  A.  S.  R.  408. 

KANSAS:     State  v.  Crawford,  11  Kan.  32. 

MISSISSIPPI:     Cunningham  v.  State,  56  Miss.  269,  31  A.  R.  360. 

NEBRASKA:     Wright  v.  People,  4  Neb.  407. 

NEW  HAMPSHIRE:  State  v.  Bartlett,  43  N.  H.  224,  80  A.  D.  154;  State 
v.  Jones,  50  N.  H.  369,  9  A.  R.  242,  266. 

NEW  YORK:     Brotherton  v.  People,  75  N.  Y.  159. 

OKLAHOMA:     Maas  v.  Ter.,  10  Okl.  714,  53  L.  R.  A.  814. 

TENNESSEE:     King  v.  State,  91  Tenn.  617;  Dove  v.  State,  3  Heisk.  348. 

And  see  Com.  v.  Heath,  11  Gray  (Mass.)  303.  Contra,  Cavaness  v. 
State,  43  Ark.  331;  Hornish  v.  People,  142  111.  620;  Lynch  v.  Com.,  77 
Pa.  205;  Coyle  v.  Com.,  100  Pa.  573,  45  A.  R.  397;  Ortwein  v.  Com.,  76 
Pa.  414,  18  A.  R.  420;  Webb  v.  State,  9  Tex.  App.  490.  Other  cases  to 
the  contrary  are  cited  in  the  two  preceding  notes. 

s«  People  v.  Morrow,  60  Cal.  142;  Com.  v.  Webster,  5  Cush.  (Mass.) 
295,  52  A.  D.  711;  Rea  v.  State,  8  Lea  (Tenn.)  356. 

87  Hodge's  Case,  2  Lewin,  Cr.  Cas.  227;  U.  S.  v.  Douglass,  2  Blatchf. 
207,  Fed.  Cas.  No.  14,989;  Ex  parte  Acree,  63  Ala.  234;  People  v.  Dole, 
122  Cal.  486,  68  A.  S.  R.  50;  Carlton  v.  People,  150  111.  181,  41  A.  S.  R. 
346;  Rhodes  v.  State,  128  Ind.  189,  25  A.  S.  R.  429;  State  v.  Clifford, 


24  LAW   OF   EVIDENCE.  §  6b 

cumstance  constituting  a  necessary  link  in  a  chain  of  cir- 
cumstantial evidence  must  be  proved  beyond  a  reasonable 
doubt,  else  the  jury  cannot  convict.38 

(b)  Civil  cases.  The  strict  measure  of  evidence  required  in 
criminal  cases  does  not  obtain  in  civil  proceedings.  In  these 
the  party  upon  whom  the  burden  of  proof  rests  is  entitled  to 
a  verdict  if  he  persuades  the  jury  of  the  truth  of  his  con- 
tentions by  a  preponderance  of  the  evidence.39  Thus  a  pre- 
ponderance of  evidence  is  sufficient  to  establish  fraud40  and 

86  Iowa,  550,  41  A.  S.  R.  518;  Home  v.  State,  1  Kan.  42,  81  A.  D.  499; 
Com.  v.  Goodwin,  14  Gray  (Mass.)  55;  Com.  v.  Webster,  5  Gush.  (Mass.) 
295,  52  A.  D.  711;  People  v.  Aikin,  66  Mich.  460,  11  A.  S.  R.  512;  Mor- 
gan v.  State,  51  Neb.  672;  State  v.  Atkinson,  40  S.  C.  363,  42  A.  S.  R. 
877;  Hocker  v.  State,  34  Tex.  Cr.  App.  359,  53  A.  S.  R.  716. 

ss  People  v.  Ah  Chung,  54  Cal.  398;  People  v.  Dole,  122  Cal.  486,  68 
A.  S.  R.  50;  Clare  v.  People,  9  Colo.  122;  Sumner  v.  State,  5  Blackf. 
(Ind.)  579,  36  A.  D.  561;  People  v.  Aikin,  66  Mich.  460,  11  A.  S.  R. 
512;  State  v.  Gleim,  17  Mont.  17;  State  v.  Crane,  110  N.  C.  530;  Leonard 
v.  Ter.,  2  Wash.  T.  381.  And  see  U.  S.  v.  Douglass,  2  Blatchf.  207,  Fed. 
Gas.  No.  14,989;  Com.  v.  Webster,  5  Gush.  (Mass.)  295,  52  A.  D.  711; 
Marion  v.  State,  16  Neb.  349;  Morgan  v.  State,  51  Neb.  672,  698;  Faulk- 
ner v.  Ter.,  6  N.  M.  465.  Contra,  Carlton  v.  People,  150  111.  181,  41  A. 
S.  R.  346;  Hinshaw  v.  State,  147  Ind.  334;  State  v.  Hayden,  45 
Iowa,  11. 

If  the  facts  are  independent  and  cumulative,  then,  of  course,  all 
need  not  be  established  beyond  a  reasonable  doubt. 

sophillipson  v.  Hayter,  L.  R.  6  C.  P.  38;  Murphy  v.  Waterhouse,  113 
Cal.  467,  54  A.  S.  R.  365;  Perot  v.  Cooper,  17  Colo.  80,  31  A.  S.  R.  258; 
Abbott  v.  Stone,  172  111.  634,  64  A.  S.  R.  60;  French  v.  Day,  89  Me.  441; 
Moore  v.  Stone  (Tex.  Civ.  App.)  36  S.  W.  909. 

It  has  been  held,  however,  that  a  preponderance  of  evidence  is  not 
sufficient  to  establish  mutual  mistake  as  ground  of  reformation  of  an 
instrument.  Stockbridge  Iron  Co.  v.  Hudson  Iron  Co.,  102  Mass.  45; 
Fudge  v.  Payne,  86  Va.  303. 

« Adams  v.  Thornton,  78  Ala.  489,  56  A.  R.  49;  Carter  v.  Gunnels. 
67  111.  270;  Baltimore,  O.  &  C.  R.  Co.  v.  Scholes,  14  Ind.  App.  524,  56 
A.  S.  R.  307;  Turner  v.  Younker,  76  Iowa,  258;  Kansas  Mill  Owners'  & 
Manufacturers'  M.  F.  Ins.  Co.  v.  Rammelsberg,  58  Kan.  531,  534;  Hough 
y.  Dickinson,  58  Mich.  89;  Burr  v.  Willson,  22  Minn.  206;  Lee  v. 


§  6b  BURDEN   OF  PROOF.  25 

negligence,41  and  it  is  sufficient  also  in  remedial  proceedings 
for  contempt  of  court.42 

A  preponderance  of  the  evidence  entitles  the  proponent  to  a 
verdict  in  a  civil  case,  even  though  it  is  necessary  for  him  to 
prove  a  criminal  act  as  a  part  of  his  case.43  It  is  sufficient, 
for  example,  in  actions  for  defamation  by  charging  crime,44 

Pearce,  68  N.  C.  76;  Jones  v.  Greaves,  26  Ohio  St.  2,  ^20  A.  R.  752; 
Sparks  v.  Dawson,  47  Tex.  138;  Schmick  v.  Noel,  72  Tex.  1. 

The  rule  is  the  same  as  to  fraud  amounting  to  crime.  Note  43, 
infra. 

To  prove  fraud,  the  evidence  must  be  clear  and  satisfactory.  Lalone 
v.  U.  S.,  164  U.  S.  255;  Beck  &  P.  Lithographing  Co.  v.  Houppert,  104 
Ala.  503,  53  A.  S.  R.  77;  Kahn  v.  Traders'  Ins.  Co.,  4  Wyo.  419,  62  A. 
S.  R.  47. 

«  North  Chicago  St.  R.  Co.  v.  Louis,  138  111.  9;  Seybolt  v.  N.  Y.,  L.  E. 
&  W.  R.  Co.,  95  N.  Y.  562,  47  A.  R.  75. 

42  Drakeford  v.  Adams,  98  Ga.  722. 

43  Elliott  v.  Van  Buren,  33  Mich.  49,  20  A.  R.  668;  People  v.  Briggs, 
114  N.  Y.  56;  Heiligmann  v.  Rose,  81  Tex.  222,  26  A.  S.  R.  804;  Weston 
v.  Gravlin,  49  Vt.  507.     Contra,  Schultz  v.  Pac.  Ins.  Co..  14  Fla.  73. 

Fraud  constituting  crime.  Coit  v.  Churchill,  61  Iowa,  296;  Gordon 
y.  Parmelee,  15  Gray  (Mass.)  413;  Thoreson  v.  N.  W.  Nat.  Ins.  Co.,  29 
Minn.  107;  Jones  v.  Greaves,  26  Ohio  St.  2,  20  A.  R.  752;  Catasauqua 
Mfg.  Co.  v.  Hopkins,  141  Pa.  30.  Civil  fraud,  see  note  40,  supra. 

In  some  states  the  question  depends  upon  whether  or  not  a  specific 
criminal  charge  is  made  in  the  pleadings.  If  so,  the  offense  must  be 
proved  beyond  a  reasonable  doubt;  but  if  the  charge  of  crime  is  by 
implication  merely,  a  preponderance  of  evidence  will  suffice,  even  though 
the  facts  charged  involve  the  party  in  the  moral  turpitude  of  a  crime. 
Sprague  v.  Dodge,  48  111.  142,  95  A.  D.  523;  Germania  F.  Ins.  Co.  v. 
Klewer,  129  HI.  599;  Grimes  v.  Hilliary,  150  111.  141;  Bissell  v.  Wert, 
35  Ind.  54;  Sinclair  v.  Jackson,  47  Me.  102,  74  A.  D.  476;  Schmidt  v. 
N.  Y.  Union  Mut.  F.  Ins.  Co.,  1  Gray  (Mass.)  529;  Burr  v.  Willson,  22 
Minn.  206;  Kane  v.  Hibernia  Ins.  Co.,  39  N.  J.  Law,  697,  23  A.  R.  239, 
241. 

44  Spruil  v.  Cooper,  16  Ala.  791;  Hearne  v.  De  Young,  119  Cal.  670; 
Downing  v.  Brown,  3  Colo.  571;  Atlanta  Journal  v.  Mayson,  92  Ga.  640, 
44  A.  S.  R.  104;  Tunnell  v.  Ferguson,  17  111.  App.  76  (statute);  Wint- 
rode  v.  Renbarger,  150  Ind.  556  (statute) ;  Riley  v.  Norton,  65  Iowa, 
306;  Sloan  v.  Gilbert,  12  Bush  (Ky.)  51,  23  A.  R.  708;  Ellis  v.  Buzzell, 
€0  Me.  209,  11  A.  R.  204;  McBee  v.  Fulton,  47  Md.  403,  28  A.  R.  465; 


26  LAW   OP  EVIDENCE.  §  6t> 

and  actions  to  recover  a  penalty  or  forfeiture,45  and  it  is  suffi- 
cient to  establish  adultery,46  bastardy,47  and  seduction,48  ar- 
son,49 larceny  or  receiving  stolen  goods,50  and  forgery.51 

Owen  v.  Dewey,  107  Mich.  67;  Edwards  v.  Knapp,  97  Mo.  432;  Barfield 
v.  Britt,  47  N.  C.  (2  Jones)  41,  62  A.  D.  190;  Bell  v.  McGinness,  40  Ohio 
St.  204,  48  A.  R.  673;  McClaugherty  v.  Cooper,  39  W.  Va.  313,  319 
(semble) ;  Kidd  v.  Fleek,  47  Wis.  443.  Contra,  Williams  v.  Gunnels, 
66  Ga.  521  (semble);  Corbley  v.  Wilson,  71  111.  209;  Fowler  v.  Wallace,. 
131  Ind.  347;  Lanter  v.  McEwen,  8  Blackf.  (Ind.)  495;  Burckhalter  v. 
Coward,  16  S.  C.  435.  And  see  Chalmers  v.  Shackell,  6  Car.  &  P.  475; 
Willmett  v.  Harmer,  8  Car.  &  P.  695. 

The  same  is  true  in  an  action  for  malicious  prosecution  for  slander. 
Smith  v.  Burrus,  106  Mo.  94,  27  A.  S.  R.  329. 

A  plea  justifying  a  charge  of  perjury  must  be  sustained  by  two  wit- 
nesses, or  by  one  witness  with  strong  corroborating  circumstances,  the- 
same  as  in  criminal  cases.  Spruil  v.  Cooper,  16  Ala.  791;  Woodbeck  v. 
Keller,  6  Cow.  (N.  Y.)  118;  Gorman  v.  Sutton,  32  Pa.  247;  Coulter  v. 
Stuart,  2  Yerg.  (Tenn.)  225.  Contra,  Folsom  v.  Brawn,  25  N.  H.  114. 

*5Munson  v.  Atwood,  30  Conn.  102;  Roberge  v.  Burnham,  124  Mass. 
277;  Sparta  v.  Lewis,  91  Tenn.  370.  Contra,  U.  S.  v.  Shapleigh,  54  Fed. 
126;  Riker  v.  Hooper,  35  Vt.  457,  82  A.  D.  646. 

The  same  is  true  in  an  action  under  the  civil  damage  acts.  Robin- 
son v.  Randall,  82  111.  521. 

46  Chestnut  v.  Chestnut,  88  111.  548;  Allen  v.  Allen,  101  N.  Y.  658; 
Smith  v.  Smith,  5  Or.  186   (statute);  Lindley  v.  Lindley,  68  Vt.  421; 
Poertner  v.  Poertner,  66  Wis.  644.     Contra,  Berckmans  v.  Berckmans, 
17  N.  J.  Eq.  453. 

47  Lewis  v.   People,   82   111.   104;    People  v.   Christman,   66   111.   162; 
Walker  v.  State,  6  Blackf.  (Ind.)  1;  State  v.  McGlothlen,  56  Iowa,  544; 
Knowles  v.  Scribner,  57  Me.  495;  Young  v.  Makepeace,  103  Mass.  50; 
Richardson  v.  Burleigh,  3  Allen  (Mass.)  479;  Semon  v.  People,  42  Mich. 
141;   State  v.  Nichols,  29  Minn.  357;   Dukehart  v.  Coughman,  36  Neb. 
412;   State  v.  Bunker,  7  S.  D.  639;   Stovall  v.  State,  9  Baxt.   (Tenn.) 
597^     And  see  Miller  v.  State,  110  Ala.  69.     Contra,  State  v.  Rogers,  11£ 
N.  C.  793;  Baker  v.  State,  47  Wis.  111. 

Legitimacy.  Some  cases  hold  that,  to  bastardize  the  issue  of  a  mar- 
ried woman  on  the  ground  of  nonaccess  of  the  husband  to  her,  the 
fact  of  nonaccess  within  the  necessary  period  must  be  shown  beyond 
a  reasonable  doubt.  Sullivan  v.  Kelly,  3  Allen  (Mass.)  148;  Cross  v. 
Cross,  3  Paige  (N.  Y.)  139,  23  A.  D.  778,  779.  Other  cases  hold  that  a 
preponderance  of  evidence  is  sufficient  to  establish  nonaccess.  Wright 


§  6b  BURDEN   OF  PROOF.  27 

The  sole  function  of  a  presumption  is  to  cast  on  the  party 
against  whom  it  operates  the  burden  of  adducing  evidence 
to  disprove  the  fact  which  it  assumes  to  exist.52  Whether  a 
presumption  may  be  rebutted  by  a  preponderance  of  the. 
evidence,  or  whether  evidence  dispelling  all  reasonable  doubt 
is  necessary  to  rebut  it,  is  a  question  concerning  the  meas- 

v.  Hicks,  12  Ga.  155,  56  A.  D.  451,  454;  Id.,  15  Ga.  160,  60  A.  D.  687, 
692.  And  see  State  v.  Romaine,  58  Iowa,  46.  In  any  event,  in  order 
to  bastardize  the  issue,  the  evidence  must  be  clear  and  satisfactory. 
Banbury  Peerage  Case,  1  Sim.  &  S.  153,  Thayer,  Gas.  Ev.  45;  Wright  v. 
Hicks,  15  Ga.  160,  60  A.  D.  687,  694;  Egbert  v.  Greenwalt,  44  Mich.  245, 
38  A.  R.  260,  264;  Scott  v.  Hillenberg,  85  Va.  245.  And  some  cases  hold 
that  it  must  be  conclusive.  Hargrave  v.  Hargrave,  9  Beav.  552,  555; 
Atchley  v.  Sprigg,  33  Law  J.  Ch.  345;  Watts  v.  Owens,  62  Wis.  512. 
And  see  State  v.  Romaine,  58  Iowa,  46.  Evidence  to  rebut  presumption 
of  legitimacy,  see  §  60,  infra. 

«  Nelson  v.  Pierce,  18  R.  I.  539. 

4»  Scott  v.  Home  Ins.  Co.,  1  Dill.  105,  Fed.  Cas.  No.  12,533;  Howell  v. 
Hartford  F.  Ins.  Co.,  3  Ins.  Law  J.  (O.  S.)  653,  Fed.  Cas.  No.  6,780; 
Mead  v.  Husted,  52  Conn.  53,  52  A.  R.  554;  Continental  Ins.  Co.  v. 
Jachnichen,  110  Ind.  59,  59  A.  R.  194;  Behrens  v.  Germania  Ins.  Co.,  58- 
lowa,  26;  Aetna  Ins.  Co.  v.  Johnson,  11  Bush  (Ky.)  587,  21  A.  R.  223; 
Decker  v.  Somerset  Mut.  F.  Ins.  Co.,  66  Me.  406  (semble) ;  Schmidt  v. 
N.  Y.  Union  Mut.  F.  Ins.  Co.,  1  Gray  (Mass.)  529;  Marshall  v.  Thames 
F.  Ins.  Co.,  43  Mo.  586;  Rothschild  v.  American  Cent.  Ins.  Co.,  62  Mo. 
356;  Kane  v.  Hibernia  Ins.  Co.,  39  N.  J.  Law,  697,  23  A.  R.  239;  Rippey 
v.  Miller,  46  N.  C.  (1  Jones)  479,  62  A.  D.  177;  Blackburn  v.  St.  P.  F. 
&  M.  Ins.  Co.,  116  N.  C.  821;  First  Nat.  Bank  v.  Commercial  Assur.  Co., 
33  Or.  43;  Somerset  County  Mut.  F.  Ins.  Co.  v.  Usaw,  112  Pa.  80,  56  A. 
R.  307;  Blaeser  v.  Milwaukee  Mechanics'  Mut.  Ins.  Co.,  37  Wis.  31,  19 
A.  R.  747.  And  see  Wightman  v.  Western  M.  &  F.  Ins.  Co.,  8  Rob. 
(La.)  442;  Hoffman  v.  Western  M.  &  F.  Ins.  Co..  1  La,  Ann.  216. 
Contra,  Thurtell  v.  Beaumont,  1  Bing.  339;  Germania  F.  Ins.  Co.  v. 
Klewer,  129  111.  599;  Barton  v.  Thompson,  46  Iowa,  30,  26  A.  R.  131; 
Butman  v.  Hobbs,  35  Me.  227. 

BO  Sinclair  v.  Jackson,  47  Me.  102,  74  A.  D.  476;  Neb.  Nat.  Bank  v. 
Johnson,  51  Neb.  546;  U.  S.  Exp.  Co.  v.  Jenkins,  73  Wis.  471. 

BI  Brown  v.  Tourtelotte,  24  Colo.  204:  Hills  v.  Goodyear,  4  Lea 
(Tenn.)  233,  40  A.  R.  5. 

62  Sections  16(c),  17(b),  infra. 


28  LAW   OP  EVIDENCE.  §  g 

ure  or  sufficiency  of  evidence.53  The  burden  of  adducing  evi- 
dence in  rebuttal  rests,  in  either  event,  on  the  party  against 
whom  the  presumption  operates.  This  being  the  case,  it  does 
not  detract  from  the  proper  effect  of  the  presumption  of  inno- 
cence to  say,  as  in  the  cases  just  considered,  that  it  may  be 
overcome  by  a  preponderance  of  the  evidence.  It  is  to  be 
observed,  however,  that  even  though,  in  civil  cases,  a  pre- 
ponderance is  sufficient  to  overcome  this  presumption,  yet  it 
may  require  a  greater  amount  of  evidence  to  constitute  a  pre- 
ponderance on  the  side  of  crime  than  it  would  to  constitute 
a  preponderance  on  the  side  of  a  wrongful  act  not  criminal 
in  character.54 

E.  ASCERTAINMENT. 

§  7.  It  is  a  question  of  practical  importance  to  determine 
upon  which  party  the  burden  of  proof  rests;  and  in  this  con- 
nection attention  may  again  be  called  to  the  distinction  be- 
tween the  two  meanings  of  that  term.  As  has  been  shown, 
it  may  mean  either  the  burden  of  convincing  the  jury  of  the 
existence  of  the  facts  in  issue,  or  the  burden  of  adducing 
evidence  tending  to  support  a  party's  own  contentions  or  to 
overcome  those  of  his  adversary.55 

§  8.    Ascertainment  of  burden  of  convincing  jury. 

Various  tests  have  been  suggested  for  determining  which 
party  bears  the  burden  of  proof  in  the  sense  of  burden  of 
convincing  the  jury  of  the  existence  of  the  facts  in  issue. 
It  will  generally  be  found,  however,  that  these  tests  are  not 

53  Section  6,  supra. 

e*Sprague  v.  Dodge,  48  111.  142,  95  A.  D.  523;  Decker  v.  Somerset 
Mut.  F.  Ins.  Co.,  66  Me.  406;  Jones  v.  Greaves,  26  Ohio  St.  2,  20  A.  R. 
752,  755;  Somerset  County  Mut.  F.  Ins.  Co.  v.  Usaw,  112  Pa.  80,  56  A. 
R.  307,  309;  Hills  v.  Goodyear,  4  Lea  (Tenn.)  233,  40  A.  R.  5,  9;  Bra- 
dish  v.  Bliss,  35  Vt.  326. 

55  Section  2,  supra. 


§  ga  BURDEN   OF  PROOF.  29 

truly  such,  and  that  they  merely  convert  one  question  into 
another.56  The  question  of  burden  of  proof,  as  has  aptly  been 
observed,  is  one  of  policy,  justice,  and  convenience,  based  on 
experience  of  the  different  situations ;"  and  to  ascertain  which 
party  bears  it,  we  must  resort  to  the  rules  of  substantive  law 
applicable  to  the  particular  case  as  supplemented  by  rules  of 
pleading. 

(a)  Burden  as  fixed  by  rules  of  substantive  law.  The  bur- 
den of  proving  facts  which  the  substantive  law  regards  as  ele- 
ments of  the  right  asserted  ordinarily  rests  on  the  party  as- 
serting the  right;68  while  new  facts  avoiding  the  legal  effect 
attaching  to  an  asserted  case  are  generally  provable  by  the 
adverse  party.69  Thus,  in  an  action  for  breach  of  contract, 
the  plaintiff  must  prove  the  contract  and  the  breach,60  while 
the  defendant,  if  he  alleges  payment  of  the  demand  in  suit, 
has  the  burden  of  proving  that  fact.61 

But  there  are  exceptions  to  this  rule.  The  party  'defend- 
ing, on  the  one  hand,  is  sometimes  compelled  to  negative  the 
existence  of  facts  which  are  essential  to  the  asserted  right;68 
and  the  party  asserting  the  right,  on  the  other  hand,  is  some- 
times compelled  to  negative  the  existence  of  facts  which  would 
defeat  the  right.  In  an  action  on  contract,  for  instance,  ca- 
pacity to  enter  into  the  contract  and  legality  of  the  contract 
are  facts  which  must  be  negatived  by  the  defendant  if  he 
would  avoid  liability  on  either  of  those  grounds;  and  this  is 

Be  Sections  8(b),  9,  infra. 

"Thayer,  Prel.  Treat.  Ev.  376;  Wigmore,  Greenl.  Ev.  p.  97;  Lisbon 
v.  Lyman,  49  N.  H.  553,  566;  Herrman  v.  G.  N.  R.  Co.,  27  Wash.  472, 
57  L.  R.  A.  390,  393. 

68  Murphy  v.  Harris,  77  Cal.  194;  Shattuck  v.  Rogers,  54  Kan.  266. 

BO  Burford  v.  Fergus,  165  Pa.  310,  314. 

«o  Section  8(c),  infra. 

«i  Section  74,  infra. 

«2  Borthwick  v.  Carruthers,  1  Term  R.  648,  649. 


30  LAW   OF   EVIDENCE.  §  8b 

true,  notwithstanding  that  capacity  of  the  parties  and  legality 
of  object  are  essential  to  the  enforceability  of  a  contract.63 
In  an  action  for  negligence,  on  the  other  hand,  the  plaintiff 
must,  in  some  jurisdictions,  prove  an  absence  of  contributory 
negligence,  even  though  his  evidence  of  negligence  on  the 
part  of  the  defendant  does  not  tend  to  show  negligence  on 
his  own  part.6* 

(b)  Burden  as  fixed  by  rules  of  pleading.  Generally  speak- 
ing, the  burden  of  convincing  the  jury  of  the  existence  of  the 
facts  on  which  an  asserted  right  depends  is  fixed  by  rules  of 
pleading  as  influenced  by  rules  of  substantive  law;  and  these 
rules,  it  may  be  said,  generally  place  the  burden  on  the  actor, 
— that  is,  the  party,  whether  plaintiff  or  defendant,  who  asks 
the  court  actively  to  intervene  in  his  behalf.65  In  other  words, 
the  burden  of  proof  is  on  the  party  who  has  the  affirmative  of 
the  issue.66 

It  is  frequently  said  that  the  burden  of  proof  is  on  the  party 

63  Coverture  as  an  affirmative  defense,  see  note  85,  infra.  Infancy  as 
an  affirmative  defense,  see  section  33,  infra.  Illegality  as  an  affirmative 
defense,  see  §  57,  infra. 

6-t  It  is  to  be  observed,  however,  that  the  better  rule  casts  the  burden 
of  proving  contributory  negligence  on  the  defendant  as  an  affirmative 
defense.  Section  67,  infra. 

6-r>  Thayer,  Prel.  Treat.  Ev.  369,  370;  Osgood  v.  Groseclose,  159  in 
511;  Capen  v.  Woodrow,  51  Vt.  106,  108;  Dahlman  v.  Hammel,  45  Wis. 
466. 

The  burden  of  proving  a  particular  allegation  lies  on  the  party  who 
would  fail,  as  a  matter  of  law,  if  the  allegation  were  stricken  from  the 
pleading.  Tayl.  Ev.  §  365;  Millis  v.  Barber,  1  Mees.  &  W.  425.  427 
(semble);  McKenzie  v.  Or.  Imp.  Co.,  5  Wash.  409,  419. 

The  fact  that  an  averment,  is  an  alternative  proposition  does  not  re- 
lieve the  pleader  from  the  burden  of  proving  either  the  one  or  the 
other  of  the  alternatives.  Lisbon  v.  Lyman,  49  N.  H.  553,  565. 

ee  Scott  v.  Wood,  81  Cal.  398;  Borden  v.  Croak,  131  111.  68,  19  A.  S.  R. 
23;  McClure  v.  Pursell,  6  Ind.  330;  Blum  v.  Strong,  71  Tex.  321. 

This  rule  is  embodied  in  the  maxim,  Ei  incumbit  probatio  qui  dir.it. 
non  qui  negat. 


*  gb  BURDEN   OF  PROOF.  31 

having  the  "affirmative  allegation."67  "This  is  a  rule  of 
convenience,  adopted,"  says  Professor  Greenleaf,  "not  because 
it  is  impossible  to  prove  a  negative,  but  because  the  negative 
does  not  admit  of  the  direct  and  simple  proof  of  which  the 
affirmative  is  capable."68  As  a  matter  of  fact,  this  is  often 
the  case;  and  it  is  also  true  that  the  difficulty  of  proving  a 
negative  may  have  some  effect  on  the  policy  of  the  law  which 
fixes  the  burden  of  proof  in  particular  cases;69  but  the  .so- 
called  rule  does  not  furnish  a  general  test  for  identifying  the 
party  having  the  burden  of  proof.  Indeed,  most  of  the  au- 
thorities that  lay  it  down  admit  so  many  exceptions  to  it  as 
practically  to  nullify  it  as  a  general  rule.70  The  truth  of 
the  matter  is  that  the  burden  of  proof  as  to  the  existence  or 
nonexistence  of  a  given  fact  rests  on  the  party,  whether 
plaintiff  or  defendant,  who  asserts  that  the  fact  does  or  does 
not  exist.  The  form  of  the  allegation  is  immaterial.  The  test 
is  whether  the  negative  constitutes  an  essential  ingredient  in 
the  cause  of  action  or  defense.71  In  an  action  for  malicious 

67  U.  S.  v.  Hay  ward,  2  Gall.  485,  Fed.  Cas.  No.  15,336;  Ft.  Smith  v. 
Dodson,  51  Ark.  447,  14  A.  S.  R.  62;  Bowser  v.  Bliss,  7  Blackf.  (Ind.) 
344,  43  A.  D.  93. 

681  Greenl.  Ev.  §  74;  Stevenson  v.  Marony,  29  111.  532,  534;  Dranguet 
v.  Prudhomme,  3  La.  83. 

eoWigmore,  Greenl.  Ev.  §  78,  note  1;  Piedmont  &  A.  L.  Ins.  Co.  v. 
Ewing,  92  U.  S.  377,  378.  Ordinarily,  however,  the  difficulty  of  prov- 
ing an  essential  fact  does  not  relieve  the  party  from  the  burden  of 
proving  it.  West  Pub.  Co.  v.  Lawyers'  Co-op.  Pub.  Co.,  64  Fed.  360,  25 
L.  R.  A.  441. 

TO  it  is  said,  for  instance,  that  in  determining  whether  an  allegation 
is  affirmative  or  negative,  within  the  meaning  of  this  rule,  regard  is 
had  to  the  substance  and  effect  of  the  issue,  rather  than  to  its  form, 
since  in  many  cases  the  issue  may  be  given  either  a  negative  or  an 
affirmative  form,  at  the  pleasure  of  the  pleader,  by  a  deft  use  of  words. 
Soward  v.  Leggatt,  7  Car.  &  P.  613;  Scott  v.  Wood,  81  Cal.  398;  Good- 
win v.  Smith,  72  Ind.  113,  37  A.  R.  144.  And  see  Langdell,  Eq.  Plead. 
§  108.  This  goes  a  long  way  towards  nullifying  the  rule  as  stated. 

71  ENGLAND:     Doe  d.  Caldecott  v.  Johnson,  7  Man.  &  G.  1047;  Elkin  v. 


32  LAW   OF  EVIDENCE.  §  gt> 

prosecution,  for  example,  the  plaintiff  has  the  burden  of 
proving  that  the  prosecution  was  without  probable  cause.72 

Janson,  13  Mees.  &  W.  655;  Williams  v.  East  India  Co.,  3  East,  192; 
Powell  v.  Milburn,  3  Wils.  355,  366. 

UNITED  STATES:     Colo.  C.  &  I.  Co.  v.  U.  S.,  123  U.  S.  307. 

ALABAMA:     Ala.  G.  S.  R.  Co.  v.  Frazier,  93  Ala.  45,  30  A.  S.  R.  28. 

GEORGIA:     Conyers  v.  State,  50  Ga.  103,  15  A.  R.  686  (statute). 

ILLINOIS:  Woodbury  v.  Frink,  14  111.  279;  Great  Western  R.  Co.  v. 
Bacon,  30  111.  347,  83  A.  D.  199. 

INDIANA:  Towsey  v.  Shook,  3  Blackf.  267,  25  A.  D.  108;  Goodwin  T. 
Smith,  72  Ind.  113,  37  A.  R.  144;  Carmel  Nat.  G.  &  I.  Co.  v.  Small,  150 
Ind.  427. 

MAINE:     'Little  v.  Thompson,  2  Me.  228. 

MASSACHUSETTS:  Com.  v.  Samuel,  2  Pick.  103;  Crowninshield  Y. 
Crowinshield,  2  Gray,  524,  Thayer,  Gas.  Ev.  100,  102;  Willett  v.  Rich, 
142  Mass.  356,  56  A.  R.  684. 

MISSISSIPPI:     Kerr  v.  Freeman,  33  Miss.  292. 

MISSOURI:     State  v.  Hirsch,  45  Mo.  429. 

MONTANA:     Hadley  v.  Rash,  21  Mont.  170,  69  A.  S.  R.  649. 

NEW  HAMPSHIRE:     Lisbon  v.  Lyman,  49  N.  H.  553. 

NEW  YORK:  Heinemann  v.  Heard,  62  N.  Y.  448;  Roberts  v.  Chitten- 
den,  88  N.  Y.  33. 

The  same  rule  applies  to  evidentiary  facts  as  to  facts  directly  in 
issue.  If  a  party  relies  on  the  nonexistence  of  a  particular  fact  in  sup- 
port of  his  case,  he  must  adduce  evidence  to  prove  it.  Boulden  v.  Mc- 
Intire,  119  Ind.  574,  12  A.  S.  R.  453. 

Slight  proof  is  sufficient  to  sustain -a  negative  averment.  Calder  Y. 
Rutherford,  3  Brod.  &  B.  302,  7  Moore,  158;  Dorsey  v.  Brigham,  177  111. 
250,  69  A.  S.  R.  228;  Beardstown  v.  Virginia,  76  111.  34;  Woodbury  v. 
Frink,  14  111.  279;  State  v.  Hirsch,  45  Mo.  429.  And  see  Kelley  v. 
Owens  "(Cal.)  30  Pac.  596. 

72pUrcel  v.  McNamara,  1  Camp.  199,  9  East,  361;  Abrath  v.  N.  E.  R. 
Co.,  11  Q.  B.  Div.  440,  451,  Thayer,  Gas.  Ev.  78,  81;  Lunsford  v.  Diet- 
rich, 93  Ala.  565,  30  A.  S.  R.  79;  Joiner  v.  Ocean  S.  S.  Co.,  86  Ga.  238; 
Ames  v.  Snider,  69  111.  376;  Smith  v.  Zent,  59  Ind.  362;  Carey  v.  Sheets, 
67  Ind.  375,  378;  Lucas  v.  Hunt,  91  Ky.  279;  Good  v.  French,  115  Mass. 
201;  Boeger  v.  Langenberg,  97  Mo.  390,  10  A.  S.  R.  322;  Dreyfus  v.  Aul, 
29  Neb.  191;  Anderson  v.  How,  116  N.  Y.  336;  King  v.  Colvin,  11  R.  I. 
582;  McManus  v.  Wallis,  52  Tex.  534.  See,  however,  Mimandre  v.  Al 
lard,  14  L.  C.  154. 

It  seems  that  the  burden  of  proof  is  on  the  defendant,  however,  if  it 
appears  that  the  plaintiff  was  discharged  or  acquitted  of  the  charge, 


§  gb  BURDEN  OF  PROOF.  33 

If  the  defense  consists  of  the  general  issue,  or  of  matter 
in  substance  and  effect  a  simple  denial  of  the  right  of  action, 
the  burden  of  proof  ordinarily  rests  on  the  plaintiff.73  If,  on 
the  other  hand,  the  defense  consists  of  matter  in  confession 
and  avoidance,  which  the  plaintiff  denies,  then  the  burden  of 
proof  rests  on  the  defendant;74  and  the  same  is  true  where 

or  that  the  proceeding  was  dismissed.  Lunsford  v.  Dietrich,  93  Ala. 
565,  30  A.  S.  R.  79;  Barhight  v.  Tammany,  158  Pa.  545,  38  A.  S.  R. 
853.  See,  however,  Boeger  v.  Langenberg,  97  Mo.  390,  10  A.  S.  R.  322. 

73  ENGLAND:     Hingeston  v.  Kelly,  18  Law  J.  Exch.  360,  Thayer,  Gas. 
Ev.  76;  Smith  v.  Davies,  7  Car.  &  P.  307;  Shilcock  v.  Passman,  7  Car. 
&  P.  289. 

ALABAMA:  Tenn.  C.,  I.  &  R.  Co.  v.  Hamilton,  100  Ala.  252,  46  A.  S. 
R.  48. 

INDIANA:  Lafayette  v.  Wortman,  107  Ind.  404;  Lafayette  &  I.  R.  Co. 
v.  Ehman,  30  Ind.  83. 

IOWA:     Homire  v.  Rodgers,  74  Iowa,  395. 

KENTUCKY:     Lucas  v.  Hunt,  91  Ky.  279. 

MASSACHUSETTS:  Starratt  v.  Mullen,  148  Mass.  570;  Phipps  v.  Mahon, 
141  Mass.  471;  Gay  v.  Bates,  99  Mass.  263;  Wilder  v.  Cowles,  100  Mass. 
487. 

MICHIGAN:  Berringer  v.  Lake  Superior  Iron  Co.,  41  Mich.  305;  In- 
galls  v.  Eaton,  25  Mich.  32. 

NEBRASKA:     McEvoy  v.  Swayze,  34  Neb.  315. 

NEW  YORK:     Farmers'  L.  &  T.  Co.  v.  Siefke,  144  N.  Y.  354. 

PENNSYLVANIA:     Falconer  v.  Smith,  18  Pa.  130,  55  A.  D.  611. 

TENNESSEE:     Warfield  v.  Railroad,  104  Tenn.  74,  78  A.  S.  R.  911. 

See,  however,  Pendleton  v.  Cline,  85  Cal.  142;  Henderson  v.  Louisville, 
8  Ky.  L.  R.  957,  4  S.  W.  187;  McCrea  v.  Marshall,  1  La.  Ann.  29;  Attle- 
borough  v.  Middleborough,  10  Pick.  (Mass.)  378. 

If  defendant  in  an  action  of  contract  pleads  the  general  issue,  and 
admits  that  he  made  the  promise  sued  on,  but  alleges  that  it  was  made 
on  a  condition,  which  it  is  admitted  has  not  been  performed,  the  de- 
fense is  not  affirmative,  and  the  burden  is  on  plaintiff  to  show  an  un- 
conditional promise.  Eastman  v.  Gould,  63  N.  H.  89.  Contra,  South- 
worth  v.  Hoag,  42  111.  446. 

74  Clements  v.  Moore,  6  Wall.  (U.  S.)  299,  315;  Cooper  v.  Tyler,  46 
111.  462,  95  A.  D.  442;  Foster  v.  Reid,  78  Iowa,  205,  16  A.  S.  R.  437; 
Woodson  Mach.  Co.  v.  Morse,  47  Kan.  429;  Jones  v.  Pashby,  67  Mich. 
459,  11  A.  S.  R.  589;  Seavy  v.  Dearborn,  19  N.  H.  351;  Knott  v.  Whit- 

Hammon.  Ev. — 3. 


34  LAW   OF  EVIDENCE.  §  gb 

a  set-off  or  counterclaim  is  pleaded,  or  a  cross  complaint  is 
interposed.75  So,  if  an  affirmative  defense  is  thus  pleaded, 
and  the  reply  in  turn  confesses  the  new  matter  and  sets  up 
other  new  matter  to  avoid  it,  the  burden  of  proof  rests  on 
the  plaintiff.™ 

These  rules  as  to  burden  of  proof  are  substantially  the  same 
in  actions  at  law  and  suits  in  equity.77 

As  a  rule,  in  civil  cases,  the  issue  is  made  up  before  trial, 
and  the  burden  of  proof  thereupon  becomes  fixed.  How- 
ever, the  framing  of  the  issue  is  sometimes  delayed  until  the 
trial  has  commenced,  and  in  these  cases  the  burden  of  proof 
is  not  finally  determined  until  that  event.78  So,  if  a  defense 
is  affirmative  as  a  matter  of  substantive  law,  the  burden  of 
proving  it  ordinarily  rests  on  the  defendant,  even  though  he 
is  allowed  to  take  advantage  of  it  without  specially  plead- 
ing it.79 

field,  99  N.  C.  76,  79  (semble) ;  McQueen  v.  People's  Nat.  Bank,  111  N. 
C.  509;  Weber  v.  Rothchild,  15  Or.  385,  3  A.  S.  R.  162;  Loan  &  Exch. 
Bank  v.  Peterkin,  52  S.  C.  236,  68  A.  S.  R.  900.  Criminal  cases,  see 
§  49 (c),  infra. 

The  burden  of  proving  the  truth  of  a  plea  in  abatement  also  rests 
on  the  defendant.  Kenwood  v.  State,  11  Ind.  App.  636. 

T6  Jones  v.  U.  S.,  39  Fed.  410;  Denver  Fire-Brick  Co.  v.  Platt,  11 
Colo.  509;  Underwood  v.  Wolf,  131  111.  425,  19  A.  S.  R.  40;  Veiths  T. 
Hagge,  8  Iowa,  163;  Venable  v.  Dutch,  37  Kan.  515,  1  A.  S.  R.  260; 
Ballard  v.  Carmichael,  83  Tex.  355;  Herriman  Irr.  Co.  v.  Butterfield 
Min.  Co.,  19  Utah,  453,  51  L.  R.  A.  930. 

76  Bury  v.  Forsyth,  3  Mont.  Law  Rep.  359;  Barnard  v.  Babbitt,  54  111. 
App.  62;  Kent  v.  White,  27  Ind.  390;  Hawes  v.  B.,  C.  R.  &  N.  R.  Co., 
64  Iowa,  315;  Robinson  v.  Hitchcock,  8  Mete.  (Mass.)  64. 

TT  Clements  v.  Moore,  6  Wall.  (U.  S.)  299;  Clarke  v.  White,  12  Pet 
(U.  S.)  178;  Evans  v.  Winston,  74  Ala.  349;  Beecher  v.  Brookfleld,  33 
Ark.  259;  Miller  v.  Lamar,  43  Miss.  383;  Pusey  v.  Wright,  31  Pa.  387; 
McGhee  Irr.  Ditch  Co.  v.  Hudson,  85  Tex.  587;  Bryant  v.  Groves,  42  W. 
Va.  10. 

fsRansone  v.  Christian,  56  Ga.  351;  Doyle  v.  Unglish,  143  N.  Y.  556. 
See,  however,  Lake  Ontario  Nat.  Bank  v.  Judson,  122  N.  Y.  278.  See 
note  3,  supra,  and  §  49 (c),  note  423,  infra. 


§  gc  BURDEN   OF   PROOF.  35 

The  influence  of  rules  of  substantive  law  on  rules  of  plead- 
ing is  seen  in  cases  where  the  plaintiff  pleads  a  fact  the  non- 
existence  of  which,  according  to  the  substantive  law,  consti- 
tutes an  affirmative  defense.  This  does  not  charge  him  with 
the  burden  of  proving  it  if  it  is  not  otherwise  essential  to 
his  case.80  And  the  fact  that  the  defendant,  in  addition  to 
denying  the  cause  of  action,  alleges  matter  whose  existence 
plaintiff  would  otherwise  have  to  negative,  or  which  is  im- 
material to  the  defense,  does  not  require  him  to  prove  those 
facts.81 

(c)  Actions  relating  to  contracts.  In  actions  on  contract, 
the  burden  of  proof  is  on  the  plaintiff  to  show  the  existence 
of  the  contract  as  alleged,82  and,  in  certain  cases,  perform- 
ance thereof  on  his  part,83  and  a  breach  thereof  on  the  part 

7»  Bell  v.  Skillicorn,  6  N.  M.  399,  407,  408  (semble).  As  to  criminal 
cases,  see  §  49 (c),  note  423,  infra. 

so  Ala.  G.  S.  R.  Co.  v.  Frazier,  93  Ala.  45,  30  A.  S.  R.  28,  36;  Jones  v. 
U.  S.  Mut.  Ace.  Ass'n,  92  Iowa,  652;  Hudson  v.  W.  W.  R.  Co.,  101  Mo. 
13.  See  Murray  v.  N.  Y.  L.  Ins.  Co.,  85  N.  Y.  236. 

A  plaintiff  is  not  required  to  prove  an  immaterial  allegation  in  the 
complaint.  Bigelow  v.  Burnham,  90  Iowa,  300,  48  A.  S.  R.  442;  Hem- 
ingway v.  State,  68  Miss.  371.  The  rule  is  otherwise  at  common  law. 
Bell  v.  Senneff,  83  111.  122. 

siHomire  v.  Rodgers,  74  Iowa,  395;  Hawes  v.  B.,  C.  R.  &  N.  R.  Co., 
64  Iowa,  315;  McEvoy  v.  Swayze,  34  Neb.  315;  Capen  v.  Woodrow,  51 
Vt.  106. 

sz  Goodyear  Dental  Vulcanite  Co.  v.  Bacon,  151  Mass.  460,  8  L.  R.  A. 
486;  Weaver  v.  Burr,  31  W.  Va.  736,  3  L.  R.  A.  94. 

In  an  action  on  an  insurance  policy,  the  burden  is  on  the  plaintiff 
to  show  that  the  loss  arose  from  causes  insured  against.  Sohier  v. 
Norwich  F.  Ins.  Co.,  11  Allen  (Mass.)  336;  Cory  v.  Boylston  F.  &  M. 
Ins.  Co.,  107  Mass.  140,  9  A.  R.  14;  Pelican  Ins.  Co.  v.  Troy  Co-Op. 
Ass'n,  77  Tex.  225. 

ss  Substantial  performance.  In  an  action  to  recover  for  substantial 
performance,  the  burden  is  on  the  contractor  to  prove  what  amount 
should  be  deducted  from  the  contract  price  on  account  of  the  expense 
to  which  the  owner  will  be  put  to  supply  omissions  in  performance. 


36  LAW    OF   EVIDENCE.  §  gc 

of  the  defendant,84  unless  the  defendant  admits  the  contract 
and  breach,  and  sets  up  an  affirmative  defense,  in  which  case 
the  burden  of  proof  rests  on  him.85  If  an  affirmative  defense 

If  the  contractor  does  not  show  this,  he  can  recover  nothing.  Spence 
v.  Ham,  163  N.  Y.  220,  51  L.  R.  A.  238. 

Insurance.  Express  warranties  in  an  insurance  policy  are  conditions 
precedent,  and  the  burden  of  proving  performance  rests  on  the  insured. 
McLoon  v.  Commercial  Mut.  Ins.  Co.,  100  Mass.  472,  97  A.  D.  116,  1  A.  R. 
129.  The  burden  of  proof  on  a  plea  of  breach  of  the  implied  warranty 
of  seaworthiness  rests  on  the  plaintiff.  Tidmarsh  v.  Wash.  F.  &  M.  Ins. 
Co.,  4  Mason,  439,  Fed.  Gas.  No.  14,024;  Wilson  v.  Hampden  F.  Ins.  Co., 
4  R.  I.  159,  172  (semble).  Contra,  Pickup  v.  Thames  &  M.  M.  Ins.  Co., 
3  Q.  B.  Div.  594,  600,  Thayer,  Gas.  Ev.  106,  109.  A  presumption  of  sea- 
worthiness makes  a  prima  facie  case  in  favor  of  plaintiff  in  the  first 
instance,  however,  so  that,  if  defendant  asserts  unseaworthiness,  he 
must  adduce  some  evidence  to  show  it.  Deshon  v.  Merchants'  Ins. 
Co.,  11  Mete.  (Mass.)  199,  207;  Wilson  v.  Hampden  F.  Ins.  Co.,  4  R.  I. 
159,  172  (semble). 

a*  Meagley  v.  Hoyt,  125  N.  Y.  771. 

ss  Cass  v.  B.  &  L.  R.  Co.,  14  Allen  (Mass.)  448;  Coffin  v.  Grand  Rapids 
Hydraulic  Co.,  136  N.  Y.  655;  Hodges  v.  Wilkinson,  111  N.  C.  56,  17  L. 
R.  A.  545;  Fairly  v.  Wappoo  Mills,  44  S.  C.  227,  29  L.  R.  A.  215. 

Mistake.  Burton  v.  Blin,  23  Vt.  151;  Christ  Church  v.  Beach,  7 
Wash.  65. 

Fraud,  duress,  and  undue  influence,  see  §§  43-45 (a),  infra. 

Illegality,  see  §  57,  infra. 

Infancy,  see  §  33,  infra. 

Coverture.  Starratt  v.  Mullen,  148  Mass.  570,  571  (semble);  Page 
v.  Findley,  5  Tex.  391.  And  see  Miller  v.  Shields,  124  Ind.  166,  8  L. 
R.  A.  406.  Contra,  Dranguet  v.  Prudhomme,  3  La.  83. 

Extension  of  time.    Meents  v.  Reiken,  42  111.  App.  17,  18. 

Tender.  McCalley  v.  Otey,  99  Ala.  584,  42  A.  S.  R.  87;  North  Pa. 
R.  Co.  v.  Adams,  54  Pa.  94,  93  A.  D.  677. 

Payment,  see  §  74,  infra. 

Accord  and  satisfaction.    American  v.  Rimpert,  75  111.  228. 

Cancellation.  Phoenix  Assur.  Co.  v.  McAuthor,  116  Ala.  659,  67  A.  S. 
R.  154. 

Release.  Blan chard  v.  Young,  11  Gush.  (Mass.)  341;  Cooper  v. 
Cooper,  9  N.  J.  Eq.  566. 

Rescission.  Sparks  v.  Sparks,  51  Kan.  195,  200,  201;  Webber  v.  Dunn, 
71  Me.  331;  Gibson  v.  Vetter,  162  Pa.  26,  28. 


§  gc  BURDEN  OF  PROOF.  37 

of  breach  of  condition  on  the  plaintiff's  part  is  admitted,  the 

Novation.  Studebaker  Bros.  Mfg.  Co.  v.  Endom,  51  La.  Ann.  1263, 
72  A.  S.  R.  489.  And  see  Hammon,  Cont.  p.  859. 

Res  judicata.    Gillson  v.  Price,  18  Nev.  109.     See,  also,  §  148,  infra. 

Diminution  of  damages.  If  defendant  admits  the  breach,  the  bur- 
den of  showing  facts  in  diminution  of  the  damages  rests  upon  him. 
Costigan  v.  M.  &  H.  R.  Co.,  2  Denio  (N.  Y.)  609;  Oldham  v.  Kerchner, 
79  N.  C.  106,  28  A.  R.  302. 

Cause  for  discharge  of  servant.  Milligan  v.  Sligh  Furniture  Co.,  Ill 
Mich.  629;  Rhoades  v.  C.  &  O.  R.  Co.,  49  W.  Va.  494,  55  L.  R.  A.  170. 

Breach  of  warranty  of  title.  Underwood  v.  Wolf,  131  111.  425,  19  A. 
S.  R.  40;  Dorr  v.  Fisher,  1  Cush.  (Mass.)  271;  Gutta  Percha  &  R. 
Mfg.  Co.  v.  Wood,  84  Mich.  452;  Day  v.  Raguet,  14  Minn.  273;  John- 
son v.  Bowman,  26  Neb.  745;  Robinson  v.  Bierce,  102  Tenn.  428,  47  L. 
R.  A.  275;  Brackenridge  v.  Claridge,  91  Tex.  527,  43  L.  R.  A.  593; 
Tacoma  Coal  Co.  v.  Bradley,  2  Wash.  600,  26  A.  S.  R.  890. 

Breacn  of  condition.  Bliley  v.  Wheeler,  5  Colo.  App.  287;  Bowser 
v.  Bliss,  7  Blackf.  (Ind.)  344,  43  A.  D.  93.  But  see  cases  cited  in 
note  73,  supra.  If  a  contract  gives  the  obligor  the  right  to  declare 
it  void  under  certain  conditions,  the  burden  is  on  him,  when  sued  for 
specific  performance,  to  show  the  existence  of  the  conditions  giving 
him  the  right  to  terminate  the  contract.  Deakin  v.  Underwood,  37 
Minn.  98,  5  A.  S.  R.  827. 

Insurance.  Even  though  the  statements  made  in  an  application  for 
an  insurance  policy  are  warranted  to  be  true,  the  burden  of  proving 
their  falsity,  in  an  action  on  the  policy,  rests  on  the  defendant.  Leete 
v.  Gresham  L.  Ins.  Soc.,  7  Eng.  Law  &  Eq.  578,  15  Jur.  1161  (sembie); 
Mfrs.  Ace.  Indem.  Co.  v.  Dorgan,  58  Fed.  945,  22  L.  R.  A.  620;  Con- 
tinental L.  Ins.  Co.  v.  Rogers,  119  111.  474;  Nat.  Ben.  Ass'n  v.  Grauman, 
107  Ind.  288;  Phenix  Ins.  Co.  v.  Pickel,  119  Ind.  155,  12  A.  S.  R.  393; 
Chambers  v.  N.  W.  Mut.  L.  Ins.  Co.,  64  Minn.  495.  58  A.  S.  R.  549; 
Grangers'  L.  Ins.  Co.  v.  Brown,  57  Miss.  308;  Jones  v.  Brooklyn  L. 
Ins.  Co.,  61  N.  Y.  79;  Redman  v.  Aetna  Ins.  Co.,  49  Wis.  431.  And 
see  Piedmont  &  A.  L.  Ins.  Co.  v.  Ewing,  92  U.  S.  377;  Golden  Star 
Fraternity  v.  Conklin,  60  N.  J.  Law,  565,  41  L.  R.  A.  449.  Contra, 
Sweeney  v.  Metropolitan  L.  Ins.  Co.,  19  R.  I.  171,  61  A.  S.  R.  751. 
And  see  Geach  v.  Ingall,  14  Mees.  &  W.  95;  Ashby  v.  Bates,  15  Mees.  & 
W.  589;  Huckman  v.  Fernie,  3  Mees.  &  W.  505,  514,  517;  Roach  v.  Ky. 
Mut.  Security  Fund  Co.,  28  S.  C.  431,  437.  While  this  view  does 
not  prevail  in  Rhode  Island,  yet  there  is  a  presumption  that  the  state- 
ments are  true,  which  stands  for  proof,  in  the  absence  of  evidence  to  the 
contrary.  O'Rourke  v.  J.  Hancock  Mut.  L,  Ins.  Co.,  23  R.  I.  457,  57  L.  R. 


38  LAW   OF  EVIDENCE.  §  gd 

burden  of  proving  matter  in  avoidance  of  it  rests  on  the 
plaintiff.86 

If  the  contract  set  forth  in  the  complaint  and  -denied  in  the 
answer  appears  prima  facie  to  be  one  which  the  statute  of 
frauds  requires  to  be  in  writing,  the  burden  of  showing  either 
a  writing  or  facts  taking  the  case  out  of  the  operation  of  the 
statute  rests  on  the  plaintiff.  Under  these  circumstances,  the 
statute  is  not  an  affirmative  defense  to  be  proved  by  the  de- 
fendant.87 

(d)  Actions  of  tort.  In  actions  of  tort,  the  burden  of  proof 
ordinarily  rests  on  the  plaintiff,88  unless  the  defendant  admits 
the  act  complained  of,  and  pleads  an  affirmative  defense,  in 
which  case  the  burden  of  proof  rests  on  him.89 

A.  496.  In  an  action  on  a  policy  of  insurance,  the  burden  of  proving 
nonperformance  of  a  condition  subsequent  rests  on  the  defendant. 
Western  Assur.  Co.  v.  Mohlman,  51  U.  S.  App.  577,  40  L.  R.  A.  561;  Jones 
v.  U.  S.  Mut.  Ace.  Ass'n,  92  Iowa,  652;  Royal  Ins.  Co.  v.  Schwing,  87 
Ky.  410;  Freeman  v.  Travelers'  Ins.  Co.,  144  Mass.  572;  Hodsdon  v. 
Guardian  L.  Ins.  Co.,  97  Mass.  144,  93  A.  D.  73;  Murray  v.  N.  Y.  L. 
Ins.  Co.,  85  N.  Y.  236.  Contra,  Rankin  v.  Amazon  Ins.  Co.,  89  Cal. 
203,  23  A.  S.  R.  460;  Wilson  v.  Hampden  F.  Ins.  Co.,  4  R.  I.  159.  The 
burden  of  proving  the  falsity  of  a  representation  lies  on  the  insurer. 
Daniels  v.  Hudson  River  F.  Ins.  Co.,  12  Gush.  (Mass.)  416,  59  A.  D.  192. 
Other  insurance  cases  will  be  found  in  notes  82,  83,  supra. 

se  Phoenix  Ins.  Co.  v.  Flemming,  65  Ark.  54,  67  A.  S.  R.  900. 

s?  Jonas  v.  Field,  83  Ala.  445;  Price  v.  Weaver,  13  Gray  (Mass.)  272, 
274. 

ssBroughton  v.  McGrew,  39  Fed.  672,  5  L.  R.  A.  406;  State  v.  House- 
keeper, 70  Md.  162,  14  A.  S.  R.  340;  Phelps  v.  Cutler,  4  Gray  (Mass.) 
137;  Newman  v.  Stein,  75  Mich.  402,  13  A.  S.  R.  447;  Wallace  v.  Lin- 
coln Sav.  Bank,  89  Tenn.  630,  24  A.  S.  R.  625;  Clarendon  Land  I.  & 
A.  Co.  v.  McClelland,  89  Tex.  483,  31  L.  R.  A.  669. 

89  Ala.  G.  S.  R.  Co.  v.  Frazier,  93  Ala.  45,  30  A.  S.  R.  28;  Corniff 
v.  Cook,  95  Ga.  61,  51  A.  S.  R.  55;  Moffet  v.  Moffet,  90  Iowa,  442;  Tuck- 
er v.  State,  89  Md.  471,  46  L.  R.  A.  181;  Blake  v.  Damon,  103  Mass. 
199;  Michigan  L.  &  I.  Co.  v.  Deer  Lake  Co.,  60  Mich.  143,  1  A.  S.  R. 
491;  Fremont,  E.  &  M.  V.  R.  Co.  v.  Harlin,  50  Neb.  698,  61  A.  S.  R. 
578;  Blunt  v.  Barrett,  124  N.  Y.  117.  Thus,  a  plea  of  justification  in 


§  8e  BURDEN   OF  PROOF.  39 

(e)  Statute  of  limitations.  Unless  it  appears  from  the  plain- 
tiff's own  pleadings  that  the  cause  of  action  is  barred  by 
statute  of  limitation,  the  statute,  in  some  states,  is  an  affirm- 
ative defense,  and  the  burden  of  proving  that  the  cause  of 
action  accrued  beyond  the  statutory  period  rests  on  the  de- 
fendant.90 In  other  states,  however,  a  contrary  view  is  taken, 
and  the  plaintiff  is  accordingly  required  to  prove,  not  only 
that  he  has  a  cause  of  action,  but  also  that  it  accrued  within 
the  time  limited  by  statute.91  However  this  may  be,  if  it 
appears  prima  facie  that  a  substantive  right  accrued  beyond 
the  period  allowed  by  statute  for  enforcing  it,  the  burden  lies 
on  the  party  asserting  the  right  to  prove  facts  which  will  bring 
him  within  an  exception  in  the  statute,  or  otherwise  defeat 
its  operation  against  him.92 

an  action  for  defamation  casts  the  burden  of  proof  on  the  defendant. 
Ransone  v.  Christian,  56  Ga.  351;  Heilman  v.  Shanklin,  60  Ind.  424; 
Stith  v.  Fullinwider,  40  Kan.  73;  Sibley  v.  Lay,  44  La.  Ann.  936; 
Sperry  v.  Wilcox,  1  Mete.  (Mass.)  267;  Finley  v.  Widner,  112  Mich. 
230. 

The  burden  of  showing  facts  in  diminution  of  damages  rests  on 
defendant.  Karst  v.  St.  P.,  S.  &  T.  F.  R.  Co.,  23  Minn.  401. 

»o  Wise  v.  Williams,  72  Cal.  544,  548;  Haines  v.  Amerine,  48  111. 
App.  570;  Combs  v.  Smith,  78  Mo.  32,  40;  Duggan  v.  Cole,  2  Tex.  381; 
Goodell's  Ex'rs  v.  Gibbons,  91  Va.  608.  And  see  White  v.  Campbell, 
25  Mich.  463,  475;  6  Current  Law,  484. 

»i  Hurst  v.  Parker,  1  Barn.  &  Aid.  92;  Taylor  v.  Spears,  6  Ark.  381, 
44  A.  D.  519  (semble) ;  Robinson  v.  State,  20  Fla.  804  (criminal  case) ; 
Huston  v.  McPherson,  8  Blackf.  (Ind.)  562  (semble);  Pond  v.  Gib- 
son, 5  Allen  (Mass.)  19,  81  A.  D.  724;  Houston  v.  Thornton,  122  N.  0. 
365,  65  A.  S.  R.  699..  And  see  Cook  v.  Cook,  10  Heisk.  (Tenn.)  464. 

»2Apperson  v.  Pattison,  11  Lea  (Tenn.)  484;  Capen  v.  Woodrow,  51 
Vt.  106.  Contra,  White  v.  Campbell,  25  Mich.  463. 

Infancy.  French  v.  Watson,  52  Ark.  168;  Davidson  v.  Nicholson,  69 
Ind.  411;  Campbell  v.  Laclede  Gas  Light  Co.,  84  Mo.  352. 

Coverture.  Campbell  v.  Laclede  Gas  Light  Co.,  84  Mo.  352;  Ed- 
wards v.  University,  21  N.  C.  (1  Dev.  &  B.  Eq.)  325. 

Acknowledgment  or  new  promise.  Moore  v.  Leseur,  18  Ala.  606; 
Taylor  v.  Spears,  6  Ark.  381,  44  A.  D.  519;  Stowell  v.  Fowler,  69  N.  H, 


40  LAW   OF  EVIDENCE.  §  9 

§  9.    Ascertainment  of  burden  of  adducing  evidence. 

Having  considered  the  rules  for  ascertaining  which  party 
bears  the  burden  <of  proof  in  its  proper  sense,  those  rules  may 
now  be  stated  that  determine  the  necessity  resting  on  a  party 
of  commencing  or  going  forward  with  the  trial  by  adducing 
evidence  tending  to  support  his  own  contentions  or  to  over- 
come those  of  his  adversary. 

Ordinarily  the  burden  of  adducing  evidence  rests,  at  the 
beginning  of  the  trial,  on  the  party  having  the  burden  of 
convincing  the  jury  of  the  facts  in  issue.  He  must  there- 
fore, at  the  opening  of  the  trial,  adduce  evidence  which  tends 
to  support  his  case.93 

In  exceptional  cases,  however,  the  burden  of  adducing  evi- 
dence at  the  beginning  of  the  trial  may  rest  on  the  opponent 
of  the  party  having  the  burden  of  proof,  as  where,  for  instance, 
from  the  facts  pleaded  by  the  proponent  and  admitted  by  the 
opponent,  a  presumption  arises  in  favor  of  the  former  which 
makes  a  prima  facie  case.  In  this  event  the  burden  of  ad- 
ducing evidence  does  not  rest  on  the  proponent  at  the  outset, 
but  rests,  on  the  contrary,  on  the  opponent,  and  he  must 
accordingly  begin  the  trial  by  adducing  evidence  to  over- 
come the  proponent's  prima  facie  case.94 

585;  Parker  v.  Butterworth,  46  N.  J.  Law,  244,  50  A.  R.  407;  Stansbury 
v.  Stansbury's  Adm'rs,  20  W.  Va.  23. 

Part  payment.    Knight  v.  Clements,  45  Ala.  89,  6  A.  R.  693. 

Absence  from  state.  Slocum  v.  Riley,  145  Mass.  370,  371;  Phillips 
T.  Holman,  26  Tex.  276. 

Extension  of  time.     Cook  v.  Cook,  10  Heisk.  (Tenn.)  464,  466. 

Concealment  of  facts.  Bartelott  v.  International  Bank,  119  111.  259. 
Where  the  bar  of  the  statute  is  sought  to  be  avoided  by  the  plaintiff 
in  a  suit  for  fraud  on  the  ground  that  he  failed  to  discover  the  facts 
until  within  the  statutory  period,  the  burden  of  proving  notice  before 
that  time  rests  on  the  defendant.  Shannon  v.  White,  6  Rich.  Eq. 
(S.  C.)  96,  60  A.  D.  115.  Contra,  Lexington  &  O.  R.  Co.  v.  Bridges,  7  B. 
Mon.  (Ky.)  556,  46  A.  D.  528. 

»s  Section  3,  supra. 


§  9  BURDEN  OF  PROOF.  41 

Saving  these  exceptional  cases,  the  burden  of  adducing  evi- 
dence rests  at  the  outset,  therefore,  on  the  party  having  the 
burden  of  proof  in  the  proper  sense  of  the  term.  The  only 
test  for  determining  who  has  the  burden  of  adducing  evidence 
at  any  subsequent  stage  in  the  trial  is  the  quantity,  weight, 
or  degree  of  evidence  which  has,  up  to  that  time,  been  intro- 
duced. If  the  proponent,  at  the  outset,  offers  evidence  merely 
sufficient  to  take  his  case  to  the  jury,  he  discharges  the  bur- 
den of  adducing  evidence  primarily  resting  on  him,  and  it 
rests  neither  on  him  nor  on  his  opponent.95  If  the  proponent 
goes  further,  and  adduces  evidence  which  is  not  only  suffi- 
cient to  take  the  case  to  the  jury,  but  such  as  to  require  a 
verdict  in  his  favor  in  the  absence  of  evidence  in  rebuttal, 
then  the  burden  of  adducing  is  cast  on  the  opponent,  who 
may  in  turn  shift  it  back  to  the  proponent  by  offering  evi- 
dence of  similar  weight  or  degree  in  his  own  behalf;  and  this 
process  may  continue  until  all  the  evidence  is  in.96 

It  has  been  said  that  the  burden  of  proof  may  be  deter- 
mined at  the  beginning  of  the  trial  by  asking  which  party 
would  lose  if  no  evidence  were  introduced  by  either,  and  that 
it  may  be  determined  at  any  subsequent  point  in  the  trial  by 
asking  which  party  would  lose  if  neither  introduced  more 
evidence.97  This  test  seems  to  refer  to  the  burden  of  going 
forward  with  the  trial  by  adducing  evidence,  rather  than  to 

»*  Note  4,  supra. 

»s  Sections  3(b),  4(b),  supra. 

»6  Section  4(b),  supra. 

"Abrath  v.  N.  E.  R.  Co.,  11  Q.  B.  Div.  440,  Thayer,  Cas.  Ev.  78; 
Amos  v.  Hughes,  1  Moody  &  R.  464;  Leete  v.  Gresham  L.  Ins.  Soc., 
7  Eng.  Law  &  Eq.  578,  15  Jur.  1161;  Geach  v.  Ingall,  14  Mees.  &  W. 
95,  100;  Ala.  G.  S.  R.  Co.  v.  Frazier,  93  Ala.  45,  30  A.  S.  R.  28,  36; 
Kent  v.  White,  27  Ind.  390,  392;  Veiths  v.  Hagge,  8  Iowa,  163;  Royal 
Ins.  Co.  v.  Schwing,  87  Ky.  410;  McKenzie  v.  Or.  Imp.  Co.,  5  Wash. 
409,  419. 


42  LAW   OF  EVIDENCE.  §  9^ 

the  burden  of  proof  in  the  proper  sense  of  the  term;98  but, 
even  so,  it  is  not  a  true  test."  It  is  true  that  the  party  on 
whom  the  burden  of  adducing  evidence  rests  must  go  forward 
with  the  trial,  else  he  will  lose,  as  a  matter  of  law,100  but  this 
is  the  effect  of  a  failure  to  discharge  the  burden,  not  a 
means  of  determining  on  whom  the  burden  rests.  As  has 
just  been  said,  the  only  way  in  which  that  'question  may  be 
determined  at  the  beginning  of  the  trial,  save  in  the  excep- 
tional cases  above  mentioned,  is  to  ascertain  who  bears  the 
burden  of  convincing  the  jury  of  the  facts  in  issue;  and  the 
only  way  in  which  the  burden  of  adducing  evidence  may 
be  determined  at  any  subsequent  point  in  the  trial  is  to  ascer- 
tain the  weight  of  the  evidence  which  has,  up  to  that  time, 
been  adduced. 

(a)  Peculiar  knowledge  of  facts.  If  the  truth  as  to  a  fact 
in  dispute  is  peculiarly  within  the  knowledge  of  one  party, 
especially  if  the  fact  is  a  negative  one,  the  burden  of  adducing 
evidence  on  that  point  usually  rests  on  him,  although,  under 
other  circumstances,  the  burden  of  adduction  would  rest  on 
his  adversary.101  Thus,  in  prosecutions  for  violations  of  vari- 

ss  See  Thayer,  Prel.  Treat.  Ev.  362,  377. 
»9  See  Wigmore,  Greenl.  Ev.  §  144. 

100  Section  4(b),  supra. 

101  Thayer,  Prel.  Treat.  Ev.  359. 
ENGLAND:     Clunnes  v.  Pezzey,  1  Camp.  8. 

UNITED  STATES:  Selma,  R.  &  D.  R.  Co.  v.  U.  S.,  139  U.  S.  560,  567; 
Piedmont  &  A.  L.  Ins.  Co.  v.  Ewing,  92  U.  S.  377,  378;  U.  S.  v.  Hay- 
ward,  2  Gall.  485,  498,  Fed.  Cas.  No.  15,336. 

ALABAMA:     Howard  v.  State,  75  Ala.  27. 

ARKANSAS:  Ft.  Smith  v.  D.odson,  51  Ark.  447,  14  A.  S.  R.  62;  Hopper 
v.  State,  19  Ark.  143. 

CALIFORNIA:     Joost  v.  Craig,  131  Gal.  504,  82  A.  S.  R.  374. 

COLORADO:  Little  Pittsburg  Consol.  Min.  Co.  v.  Little  Chief  Consol. 
Min.  Co.,  11  Colo.  223,  7  A.  S.  R.  226,  235. 

ILLINOIS:     G.  W.  R.  Co.  v.  Bacon,  30  111.  347,  83  A.  D.  199. 

INDIANA:    Tea  v.  Gates,  10  Ind.  164. 


§  9a  BURDEN  OF  PROOF.  43 

cms  statutes  regulating  the  sale  of  intoxicating  liquor,  the 
burden  is  on  the  defendant  to  show  a  license,  if  he  has  oner 
especially  where  the  indictment  does  not  allege  its  nonex- 
istence;102  and  if  the  seller  of  liquor  sues  for  the  price,  he 
has  the  burden  of  showing  that  he  was  duly  licensed  to  sell.10* 

IOWA:  Swafford  v.  Whipple,  3  G.  Greene;  261,  54  A.  D.  498;  Good- 
win v.  Provident  Sav.  L.  Assur.  Ass'n,  97  Iowa,  226,  59  A.  S.  R.  411. 

LOUISIANA:     Lovell  v.  Payne,  30  La.  Ann.  511. 

MAINE:     Buswell  v.  Fuller,  89  Me.  600. 

MICHIGAN:     People  v.  Swineford,  77  Mich.  573. 

MINNESOTA:  Lake  v.  Minn.  Masonic  Relief  Ass'n,  61  Minn.  96,  52  A. 
8.  R.  538. 

NEW  YORK  :     Clark  v.  Miller,  4  Wend.  628. 

NOBTH  CAROLINA:  Govan  v.  Gushing,  111  N.  C.  458;  State  v.  Arnold, 
35  N.  C.  (13  Ired.  Law)  184. 

OREGON:  Shmit  v.  Day,  27  Or.  110;  Weber  v.  Rothchild,  15  Or.  385, 
3  A.  S.  R.  162. 

UTAH:  Herriman  Irr.  Co.  v.  Butterfield  Min.  Co.,  19  Utah,  453,  51 
L.  R.  A.  930. 

WEST  VIRGINIA:     Butler  v.  Thompson,  45  W.  Va.  660,  72  A.  S.  R.  838. 

WISCONSIN:  Atkinson  v.  Goodrich  Transp.  Co.,  69  Wis.  5,  14;  Hatch- 
ard  v.  State.  79  Wis.  357. 

See,  however,  Brill  v.  St.  Louis  Car  Co.,  80  Fed.  909. 

This  rule  applies  in  actions  for  negligence  against  carriers  of  pas- 
sengers (§  69a,  infra),  carriers  of  goods  (§  68d,  infra),  telegraph  com- 
panies (§  68c,  infra),  and  bailees  generally  (§  68a,  infra),  and  also  in 
actions  against  railroad  companies  for  setting  fires  (§  66d,  infra). 

In  some  cases  it  is  held  that  a  party's  peculiar  knowledge  does  not 
cast  on  him  the  burden  of  adducing  evidence,  in  the  sense  that,  if  he 
fails  to  do  so,  he  will  lose  as  a  matter  of  law,  and  that  his 'failure  to 
adduce  evidence  is  merely  a  fact  which  may  be  considered  against 
him  in  weighing  the  rest  of  the  evidence.  Rex  v.  Burdett,  4  Barn.  & 
Aid.  95,  140;  State -v.  Wilbourne,  87  N.  C.  529.  And  see  Lisbon  v. 
Lyman,  49  N.  H.  553.  This  construction  of  the  rule  is  but  another 
forjn  of  the  presumption  indulged  against  a  party  who  falls  to  pro- 
duce evidence  peculiarly  within  his  power.  See  §§  37-4"2,  infra. 

102  CANADA:     In  re  Barrett,  28  U.  C.  Q.  B.  559. 

UNITED  STATES:  Mugler  v.  Kan.,  123  U.  S.  623,  674;  U.  S.  v.  Nelson,. 
29  Fed.  202. 

ARKANSAS:     Williams  v.  State,  35  Ark.  430. 


44  LAW   OF  EVIDENCE. 

ART.   II.     PRESUMPTIONS. 

A.  Preliminary  Considerations,  §  10. 

B.  Presumptions  of  Fact  and  of  Law,  §  11. 

Presumptions  of  fact,  §  12. 
Presumptions  of  law,  §  13. 

(a)  Conclusive  presumptions. 

(b)  Disputable  presumptions. 
Presumptions  for  jury  and  for  court,  §  14. 

GEOEGIA:     Sharp  v.  State,  17  Ga.  290. 

ILLINOIS:     Noecker  v.  People,  91  111.  468. 

INDIANA:     Shearer  v.  State,  7  Blackf.  99. 

KENTUCKY:     Haskill  v.  Com.,  3  B.  Mon.  342,  343. 

MAINE:     State  v.  Crowell,  25  Me.  171;  State  v.  Woodward,  34  Me.  293. 

MASSACHUSETTS:  Com.  v.  Dean,  110  Mass.  357  (statute);  Com.  v. 
Leo,  110  Mass.  414  (statute);  Com.  v.  Tuttle,  12  Cush.  502  (statute); 
Com.  v.  Rafferty,  133  Mass.  574  (statute) ;  Com.  v.  Curran,  119  Mass.  206 
(statute);  Com.  v.  Towle,  138  Mass.  490  (statute). 

MICHIGAN:     Smith  v.  Village  of  Adrian,  1  Mich.  495. 

MINNESOTA:     State  v.  Bach,  36  Minn.  234. 

MISSISSIPPI:     Thomas  v.  State,  37  Miss.  353. 

MISSOURI:     State  v.  Edwards,  60  Mo.  490. 

NEBBASKA:     Hornberger  v.  State,  47  Neb.  40. 

NEW  HAMPSHIRE:     State  v.  Foster,  23  N.  H.  348,  55  A.  D.  191. 

NEW  JERSEY:  Greeley  v.  Passaic,  42  N.  J.  Law,  87;  Jackson  v.  Cam- 
den,  48  N.  J.  Law,  89. 

NORTH  CAROLINA:     State  v.  Emery,  98  N.  C.  668. 

OREGON:     State  v.  Cutting,  3  Or.  260. 

SOUTH  CAROLINA:     Geuing  v.  State,  1  McCord,  573. 

WASHINGTON:     State  v.  Shelton,  16  Wash.  590. 

And  see  State  v.  Richeson,  45  Mo.  575,  579.  Contra,  State  v.  Nye,  32 
Kan.  201;  Com.  v.  Thurlow,  24  Pick.  (Mass.)  374;  Com.  v.  Kimball,  7 
Mete.  (Mass.)  304,  306;  Hepler  v.  State,  58  Wis.  46.  And  see  State 
v.  Woodly,  47  N.  C.  (2  Jones)  276. 

The  same  rule  applies  in  prosecutions  for  engaging  in  various  trades 
and  professions  without  a  license.  Apothecaries  Co.  v.  Bentley,  Ryan 
&  M.  159;  Williams  v.  People,  121  111.  84;  State  v.  Wilson,  62  Kan. 
621,  52  L.  R.  A.  679;  Wheat  v.  State,  6  Mo.  455;  State  v.  Parsons,  124 
Mo.  436,  46  A.  S.  R.  457;  Sheldon  v.  Clark,  1  Johns.  (N.  Y.)  513. 

Where  a  prima  facie  case  of  sales  of  intoxicants  in  violation  of  a 
state  law  has  been  made  out,  the  burden  is  on  the  accused  to  prove 
facts  that  will  bring  him  within  the  protection  of  the  interstate  com- 


§   10  PRESUMPTIONS.  45 

C.  Evidential  and  Nonevidential  Presumptions,  §  15. 

Evidential  presumptions,  §  16. 

(a)  Origin. 

(b)  Nature. 

(c)  Effect. 

(d)  Mode  of  establishing  facts  founding  presumption. 
Nonevidential  presumptions,  §  17. 

(a)  Nature. 

(b)  Effect. 

D.  Conflict  of  Presumptions,  §  18. 

Presumptions  relating  to  burden  of  convincing  jury,  §  19. 
Presumptions  relating  to  burden  of  adducing  evidence,  §  20. 
Conflict  between  presumptions  relating  to  burden  of  convincing 
jury  and  those  relating  to  burden  of  adducing  evidence,  §  21. 

A.  PRELIMINARY  CONSIDERATIONS. 

§  10.    Presumption  is  the  assumption  or  taking  for  granted 

merce  clause  of  the  federal  constitution.  Keith  v.  State,  91  A.la.  2,  10 
L.  R.  A.  430;  State  v.  Chapman,  1  S.  D.  414,  10  L.  R.  A.  432. 

In  a  prosecution  under  the  game  laws,  the  burden  is  on  the  ac- 
cused to  show  that  he  was  qualified  to  do  the  act  complained  of.  Rex 
v.  Turner,  5  Maule  &  S.  206.  And  see  Smyth  v.  Jefferies,  9  Price,  257. 

If  it  is  essential  to  show  want  of  authority  on  the  part  of  a  third 
person,  the  burden  of  proof  is  on  the  state,  since  in  this  event  the 
truth  is  not  peculiarly  within  the  accused's  knowledge.  Weaver  v. 
State,  89  Ga.  639.  Thus,  in  a  prosecution  for  carrying  liquor  to  a 
town  with  reason  to  believe  that  it  was  to  be  sold  there  in  violation 
of  law,  the  burden  is  on  the  commonwealth  to  show  that  the  town  did 
not  authorize  the  sale  of  such  liquor.  Com.  v.  Babcock,  110  Mass.  107; 
Com.  v.  Locke,  114  Mass.  288.  It  has  been  held,  however,  that,  in  a 
prosecution  for  cutting  timber  without  the  owner's  consent,  the  bur- 
den of  proving  consent  rests  on  the  accused.  Welsh  v.  State,  11  Tex. 
368.  And  the  same  rule  has  been  applied  in  a  prosecution  for  selling 
intoxicants  to  a  minor  student  without  the  consent  of  the  parent  or 
guardian.  The  burden  of  showing  consent  was  held  to  be  on  the  ac- 
cused. Farrall  v.  State,  32  Ala.  557.  See,  however,  as  tending  to  the 
contrary,  Conyers  v.  State,  50  Ga.  103,  15  A.  R.  686;  State  v.  Evans, 
50  N.  C.  (5  Jones)  250. 

los  Solomon  v.  Dreschler,  4  Minn.  278;  Bliss  v.  Brainard,  41  N.  H. 
256.  And  see  Garland  v.  Lane,  46  N.  H.  245;  Kane  v.  Johnston,  9 
Bosw.  (N.  Y.)  154.  Contra,  Wilson  v.  Melvin,  13  Gray  (Mass.)  73; 


46  LAW   OF   EVIDENCE.  §   10 

of  an  unknown  fact.1  It  does  not  involve  an  exercise  of  the 
rational  faculty  with  reference  to  the  fact  assumed,  but  is 
indulged,  for  the  sake  of  convenience,  to  aid  and  shorten 
inquiry  and  argument.  It- is  thus  distinguished  from  infer- 
ence, which  assumes  nothing,  and  takes  nothing  for  granted, 
but  is  a  reasoning  or  logical  process  involving  deduction  or 
induction.  This  distinction  between  presumption  and  infer- 
ence should  be  borne  in  mind  throughout  this  discussion. 

Presumptions  are  "closely  related  to  the  subject  of  judicial 
notice;  for  they  furnish  the  basis  of  many  of  those  sponta- 
neous recognitions  of  particular  facts  or  conditions  which 
make  up  that  doctrine."2  They  differ  from  judicial  notice, 
however,  in  this:  In  the  case  of  judicial  notice,  the  abso- 
lute truth  of  the  fact  in  question  is  recognized  without  evi- 
dence. There  is  no  assumption  in  the  process.  The  court 
knows  the  truth,  and  acts  accordingly.  If  the  court  does  not 
in  fact  have  knowledge  of  the  truth,  and  can  find  no  means 
to  inform  itself,  it  cannot  take  judicial  notice  of  the  fact  in 
dispute,  even  though  it  is  a  proper  subject  of  judicial  notice. 
In  the  case  of  presumption,  on  the  other  hand,  the  truth  of 
the  fact  in  question  is  unknown,  and  is  for  the  moment  imma- 
terial. Absolutely  or  tentatively,  the  fact  is  assumed.  Judi- 
cial notice  is  therefore  not  assumption,  but  recognition;  and 
presumption,  on  the  other  hand,  is  not  recognition,  but  assump- 
tion. 

While  presumptions  are  ordinarily  regarded  as  belonging 

Pratt  v.  Langdon,  97  Mass.  100.  And  see  Craig  v.  Proctor,  6  R.  I.  547; 
Barton  v.  Sutherland,  5  Rich.  Law.  (S.  C.)  57. 

In  an  action  by  the  proprietors  of  a  theater  against  an  actor  for 
breach  of  contract,  evidence  that  performances  have  gone  on  without 
interruption  by  the  municipal  authorities  is  prima  facie  evidence  that 
the  theater  was  duly  licensed.  Rodwell  v.  Redge,  1  Car.  &  P.  220. 

i  Ward  v.  Metropolitan  L.  Ins.  Co.,  66  Conn.  227,  50  A.  S.  R.  80. 

2Thayer,  Prel.  Treat.  Ev.  314. 


§   10  PRESUMPTIONS.  47 

peculiarly  to  the  law  of  evidence,  they  belong,  in  strict  pro- 
priety, to  the  wider  field  of  legal  reasoning  in  its  application 
to  particular  subjects.  They  "are  aids  to  reasoning  and  argu- 
mentation, which  assume  the  truth  of  certain  matters  for  the 
purpose  of  some  given  inquiry.  They  may  be  grounded  on 
general  experience,  or  probability  of  any  kind,  or  merely  on 
policy  and  convenience.  On  whatever  basis  they  rest,  they 
operate  in  advance  of  argument  or  evidence,  or  irrespective  of 
it,  by  taking  something  for  granted, — by  assuming  its  exist- 
ence. ' '  In  themselves,  however,  they  are  not  evidence,3  though 
for  the  time  being  they  accomplish  the  result  of  evidence. 
They  are  simply  a  process  which  aids  and  shortens  inquiry 
and  argument.  They  relate  to  the  whole  field  of  argument, 
whenever  and  by  whomsoever  conducted,  and  also  to  the 
whole  field  of  the  law,  in  so  far  as  it  has  been  shaped  and 
is  being  shaped  by  the  process  of  reasoning.  The  subject  of 
presumptions  is  therefore  one  of  universal  application  in  the 
law,  both  as  regards  the  subjects  to  which  it  relates  and  the 
persons  who  apply  it.4 

s  Thayer,  Prel.  Treat.  Ev.  314;  Sturdevant's  Appeal,  71  Conn.  398, 
Thayer,  Gas.  Ev.  95,  96;  McGinnis  v.  Kempsey,  27  Mich.  363;  Lisbon 
v.  Lyman,  49  N.  H.  553,  And  see  cases  cited  in  notes  33,  53,  infra. 

It  has  been  said  that  the  "legal  presumption  of  innocence  is  to  be 
regarded  by  the  jury,  in  every  case,  as  matter  of  evidence,  to  the 
benefit  of  which  the  party  is  entitled."  1  Greenl.  Ev.  §  34;  CofBn  v. 
U.  S.,  156  U.  S.  432;  Lilienthal's  Tobacco  v.  U.  S.,  97  U.  S.  237,  267; 
Bryant  v.  State,  116  Ala.  445;  Ellis  v.  Buzzell,  60  Me.  209,  11  A.  R. 
204.  This  statement  is  inaccurate  and  misleading,  however,  since  pre- 
sumptions are  not  evidence,  but  are  merely  rules  that  concern  the  bur- 
den of  proof,  in  some  sense  of  that  term.  Thayer,  Prel.  Treat.  Ev. 
337;  State  v.  Smith,  65  Conn.  283;  State  v.  Nicholls,  50  La.  Ann.  699, 
706;  Morehead  v.  State,  34  Ohio  St.  212.  And  see  Agnew  v.  U.  S.,  165 
U.  S.  36,  51. 

*  Thayer,  Prel.  Treat.  Ev.  314.  Thus,  to  quote  again  from  the  same 
author:  "When  it  is  said  that,  if  persons  contract  for  the  sale  of  a 
specific  chattel,  it  is  presumed  that  the  title  passes;  and  that,  when 


48  '  LAW   OF   EVIDENCE.  §   H 

While  presumptions  are  not  a  part  of  the  law  of  evidence 
in  the  proper  sense  of  the  term,  yet  many  of  them  vitally 
concern  it  in  that  they  fix  upon  the  party  against  whom  they 
operate  the  burden  of  proof  in  some  sense  of  that  term. 
These  it  is  the  present  purpose  to  consider. 

B.  PRESUMPTIONS  OF   FACT  AND   OF  LA.W. 

§  11.  Presumptions  are  commonly  classified  as  presumptions 
of  fact  and  presumptions  of  law,  the  latter  being  subdivided 
into  conclusive  and  disputable  presumptions. 

Many  presumptions  may  be  regarded  as  presumptions  of 
fact  or  presumptions  of  law,  and  as  conclusive  or  disputable 
presumptions,  according  to  the  number  of  facts  which  are 
conceived  of  as  giving  rise  to  them.  A  presumption  which, 
stated  in  general  terms,  is  one  of  fact,  may,  when  more  basic 
facts  are  added,  resolve  into  a  presumption  of 'law,  and  vice 
versa.  So,  a  presumption  of  law  which,  stated  in  general  terms, 
is  conclusive,  may  resolve  into  a  disputable  presumption  by 
the  introduction  of  additional  fundamental  facts,  and  vice 
versa.  This  consideration  may  serve  to  account  for  some  ap- 
parent conflict  in  the  cases  as  to  the  nature  of  various  pre- 
sumptions. It  will  sometimes  be  found  that  cases  holding  a 
presumption  to  be  one  of  fact,  or  holding  a  presumption  of 
law  to  be  rebuttable,  are  in  conflict  with  cases  in  terms  hold- 
ing the  contrary,  simply  because  they  introduce  additional 
facts  as  a  basis  of  their  holding,  and  vice  versa. 

a  man  voluntarily  kills  another,  without  any  more  known  or  stated, 
it  is  presumed  to  be  murder;  and  that,  when  a  written  communica- 
tion to  another  is  put  in  the  mail,  properly  addressed,  and  postage 
prepaid,  it  is  presumed  that  the  other  receives  it;  and  that,  when  one 
has  been  absent  seven  years,  and  no  knowledge  of  him  had  by  those 
who  would  naturally  know,  death  is  presumed, — in  these  cases,  rightly 
considered,  we  have  particular  precepts  in  the  substantive  law  of  so 
many  different  subjects, — of  property,  of  homicide,  of  notice,  and  of 
persons."  Prel.  Treat.  Ev.  327. 


§   12  PRESUMPTIONS.  49 

§  12.    Presumptions  of  fact. 

Presumptions  of  fact  or'  natural  presumptions  are  based 
on  indirect  or  circumstantial  evidence.  They  are  inferences  as 
to  the  existence  of  an  unknown  fact,  drawn,  without  ref- 
erence to  rules  of  law,  from  given  facts  and  circumstances 
of  which  evidence  has  been  adduced.  They  assume  nothing, 
take  nothing  for  granted,  and  are  reached  only  by  a  process 
of  reasoning.  It  is  this  that  distinguishes  them  from  pre- 
sumptions of  law,  for  these  are  more  or  less  arbitrary  assump- 
tions as  to  the  existence  of  an  unknown  fact  which  are  sanc- 
tioned by  rules  of  law,  and  do  not  depend  upon  a  process  of 
reasoning.5  Presumptions  of  fact  are  therefore  not  true  pre- 
sumptions, "but  mere  arguments,"  says  Professor  Greenleaf,8 
"of  which  the  major  premise  is  not  a  rule  of  law.  They 
belong  equally  to  any  and  every  subject-matter,  and  are  to 
be  judged  by  the  common  and  received  tests  of  the  truth  of 
propositions  and  the  validity  of  arguments.  They  depend 
upon  their  own  natural  force  and  efficacy  in  generating  belief 
or  conviction  in  the  mind,  as  derived  from  those  connections 
which  are  shown  by  experience,  irrespective  of  any  legal  rela- 
tions. They  differ  from  presumptions  of  law  in  this  essen- 
tial respect:  that  while  those  are  reduced  to  fixed  rules,  and 
constitute  a  branch  of  the  particular  system  of  jurisprudence 
to  which  they  belong,  these  merely  natural  presumptions  are 
derived  wholly  and  directly  from  the  circumstances  of  the 
particular  case,  by  means  of  the  common  experience  of  man- 
is  Rex  v.  Burdett,  4  Barn.  &  Aid.  95,  161;  U.  S.  v.  Searcey,  26  Fed. 
435;  Sutphen  v.  Cushman,  35  111.  186;  Oxier  v.  U.  S.(  1  Ind.  T.  85; 
Leighton  v.  Merrill,  159  Mass.  271;  Gulick  v.  Loder,  13  N.  J.  Law,  68, 
23  A.  D.  711,  713;  O'Gara  v.  Eisenlohr,  38  N.  Y.  296;  First  Nat.  Bank  v. 
Commercial  Assur.  Co.,  33  Or.  43,  53;  Randall  v.  Collins,  52  Tex.  435. 
Contra,  Campbell  v.  State,  150  Ind.  74. 

e  1  Greenl.  Ev.  §§  44,  48.    And  see,  generally,  7  Current  Law,  1515. 

Hammon,  Ev. — 4. 


50  LAW   OF   EVIDENCE.  §  12 

kind,  without  the  aid  or  control  of  any  rules  of  law  what- 
ever. *  *  *  These  presumptions  remain  the  same  in  their 
nature  and  operation,  under  whatever  code  the  legal  effect 
or  quality  of  the  facts,  when  found,  is  to  be  decided."  "In 
fine,"  he  continues,  "this  class  of  presumptions  embraces  all 
the  connections  and  relations  between  the  facts  proved  and 
the  hypothesis  stated  and  defended,  whether  they  are  mechan- 
ical and  physical,  or  of  a  purely  moral  nature.  It  is  that 
which  prevails  in  the  ordinary  affairs  of  life,  namely,  the 
process  of  ascertaining  one  fact  from  the  existence  of  another, 
without  the  aid  of  any  rule  of  law,"  and  therefore  it  falls 
within  the  exclusive  province  of  the  jury,  who  are  bound  to 
find  according  to  the  truth.7 

The  term  presumption  of  fact  is  sometimes  applied  to  dis- 
putable presumptions  as  a  class,  as  if  no  presumptions  of 
law  were  rebuttable.8  This  is  a  misuse  of  the  term.  It  is 
true  that  presumptions  of  fact,  being  nothing  but  inferences 
from  circumstantial  evidence,  are  rebuttable,  but  many  pre- 
sumptions of  law  are  rebuttable  as  well. 

Another  common  error  is  that  which  ascribes  to  a  given 
presumption  all  the  attributes  of  a  presumption  of  law,  and 
yet  calls  it  a  presumption  of  fact;  as  where  it  is  said  that 
a  certain  presumption  shifts  the  burden  of  adducing  evidence, 
on  the  party  against  whom  it  operates,  and,  in  the  absence 
of  evidence  in  rebuttal,  requires  a  verdict  against  him,  and 
yet  that  it  is  a  presumption  of  fact.9 

f  See  §  14,  infra,  as  to  province  of  court  and  jury. 

sHuntley  v.  Whittier,  105  Mass.  391,  7  A.  R.  536;  Ham  v.  Barret,  28 
Mo.  388. 

»  Pickup  v.  Thames  &  M.  M.  Ins.  Co.,  3  Q.  B.  Div.  594,  Thayer,  Cas. 
Ev.  106,  109;  The  Bronx,  86  Fed.  808;  Ham  v.  Barret,  28  Mo.  388; 
Com.  v.  Gerade,  145  Pa.  289,  27  A.  S.  R.  689,  692;  Stover  v.  Duren,  3 
Stroh.  (S.  C.)  448,  51  A.  D.  634;  McQueen  v.  Fletcher,  4  Rich.  Eq.  (S. 
C.)  152. 


g  I3a  PRESUMPTIONS.  51 

§  13.    Presumptions  of  law. 

Presumptions  of  law,  sometimes  termed  legal  or  artificial 
presumptions,  are  assumptions  as  to  the  existence  of  an  un- 
known fact.  They  rest  on  rules  of  law,  and  do  not  call  for 
an  exercise  of  the  rational  faculty.  It  is  this  that  distinguishes 
them  from  presumptions  of  fact,  which  are  mere  inferences 
reached  by  deduction  or  induction.10  Presumptions  of  law 
are  generally  classified  as  conclusive  or  disputable. 

(a)  Conclusive  presumptions.  Conclusive,  absolute,  or  im- 
perative presumptions  establish  in  law  beyond  dispute  the  fact 
whose  existence  they  assume,  and  evidence  is  not  admissible 
to  disprove  it.  Neither  court  nor  jury  may  ignore  it,  nor  infer 
anything  inconsistent  with  it.11 

To  say  that  a  fact  shall  be  conclusively  assumed  to  exist, 
and  that  evidence  shall  not  be  received  to  dispute  that  assump- 
tion, is  an  oblique  way  of  saying  that  the  nonexistence  of  the 
fact  is  immaterial, — that  the  rule  of  law  concerning  the  sub- 
ject in  dispute  is  the  same  whether  the  fact  does  or  does  not 
exist.12  Accordingly,  the  law,  in  making  the  presumption 
conclusive,  takes  it  out  of  the  domain  of  evidence  into  that 
of  the  substantive  law.  For  instance,  there  is  a  presumption 
of  law  that  a  child  under  seven  years  of  age  is  incapable  of 
committing  crime;  that  is  to  say,  evidence  that  a  person 
accused  of  crime  is  under  seven  is  equivalent  to  evidence  that 
he  is  without  capacity  to  commit  crime.  Now,  if  this  were 
a  disputable  presumption,  evidence  would  be  admissible  to 
overcome  it,  and  the  rule  would  relate  to  the  law  of  evidence 

loGulick  v.  Loder,  13  N.  J.  Law,  68,  23  A.  D.  711,  713;  Lee  v.  Pearce, 
68  N.  C.  76,  84.  And  see  cases  cited  in  note  5,  supra. 

11  Hardy's  Case,  24  How.  State  Tr.  1361,  Thayer,  Cas.  Ev.  44;  Tooke's 
Case,  25  How.  State  Tr.  1,  Thayer,  Gas  Ev.  44;  McCagg  v.  Heacock, 
34  111.  476.  85  A.  D.  327. 

"State  v.  Platt,  2  Rich.  Law  (S.  C.)  150,  154. 


52  LAW    OF   EVIDENCE.  §   14 

in  that  it  would  fix  the  burden  of  adducing  evidence  of  crim- 
inal capacity.  Being  a  conclusive  presumption,  however,  evi- 
dence is  not  admissible  to  show  that  an  accused  under  seven 
is  capable  of  committing  crime.  No  burden  of  adduction  is 
fixed;  the  presumption  is  purely  a  rule  of  substantive  law. 
It  has  no  more  to  do  with  evidence  than  the  equally  settled 
rule  that  an  infant  is  incapable  in  law  'of  absolutely  binding 
himself  by  contract.  , 

A  distinction  sometimes  overlooked  may  be  noted  here  be- 
tween rebutting  a  presumption  and  disproving  the  facts  on 
which  it  is  founded.  When  it  is  said  that  a  presumption  is 
conclusive,  and  not  rebuttable,  it  is  not  meant  that  the  party 
against  whom  the  presumption  operates  cannot  disprove  the 
facts  which  give  rise  to  it.  All  that  is  meant  is  that  he  can- 
not disprove  the  fact  which  the  presumption  assumes  to  exist. 
All  presumptions,  whether  conclusive  or  rebuttable,  are  subject 
to  attack  on  the  ground  that  one  or  more  of  the  facts  essen- 
tial to  their  being  do  not  in  truth  exist. 

(b)  Disputable  presumptions.  Disputable  or  rebuttable  pre- 
sumptions, as  their  name  implies,  are  opposed  to  conclusive 
presumptions,  in  that  evidence  is  admissible  to  disprove  the 
fact  which  they  assume  to  exist.  Their  only  effect  is  to  cast 
on  the  party  against  whom  they  operate  the  burden  of  proof 
in  one  or  the  other  of  the  two  meanings  of  that  term.13  If, 
however,  this  evidence  in  rebuttal  is  not  given,  then  they  stand 
for  conclusive  proof  of  the  assumed  fact,  and  the  court  will 
give  them  effect  accordingly.14 

§  14.    Presumptions  for  jury  and  for  court. 

The  decision  of  the  facts  in  issue  is,  as  a  rule,  the  peculiar 

is  Sections  16 (c),  17 (b),  infra. 

"Kidder  v.  Stevens,  60  Cal.  414;  Bush  v.  Barnett,  96  Gal.  202.  See, 
also,  §§  16 (c),  17 (b),  infra. 


§   14  PRESUMPTIONS.  53 

province  of  the  jury.  This  duty  is  not  affected  by  the  so- 
called  presumption  of  fact.  Such  a  presumption,  as  has  been 
seen,  is  a  mere  inference  which  the  jury  may  or  may  not  draw, 
as  to  them  seems  proper.  "They  are  usually  aided  in  their 
labors  by  the  advice  and  instructions  of  the  judge,  more  or 
less  strongly  urged,  at  his  discretion;  but  the  whole  matter  is 
free  before  them,  unembarrassed  by  any  considerations  of 
policy  or  convenience,  and  unlimited  by  any  boundaries  but 
those  of  truth,  to  be  decided  by  themselves,  according  to  the 
convictions  of  their  own  understanding."15 

Presumptions  of  law  stand  on  another  plane.  Questions  of 
law  are  generally  a  matter  within  the  exclusive  province  of 
the  court;  with  them  the  jury  have  nothing  to  do  further 
than  to  obey  the  court's  instructions  concerning  them.  Now, 
presumptions  of  law  are  based  on  rules  of  law  pure  and 
simple.  Whether  the  fact  assumed  in  a  presumption  of  law 
is  justified  as  a  logical  inference  from  the  facts  in  evidence  is 
a  matter  of  no  moment.  The  questions,  when  do  the  facts 
in  evidence  give  rise  to  a  presumption  of  law  ?  and,  what  effect 
shall  be  given  to  the  presumption?  are  therefore  questions 
addressed  to  the  court  alone,  and  the  jury  must  abide  by  the 
court's  instructions  concerning  them.16 

iol  Greenl.  Ev.  §  48;  Crane  v.  Morris'  Lessee,  6  Pet.  (U.  S.)  598; 
U.  S.  v.  Searcey,  26  Fed.  435;  People  v.  Messersmith,  61  Cal.  246;  Jenk- 
ins v.  Jenkins,  83  Ga.  283,  20  A.  S.  R.  316,  319;  Cartier  v.  Troy  Lum- 
ber Co.,  138  111.  533;  Graves  v.  Colwell,  90  111.  612;  State  v.  Richart, 
57  Iowa,  245;  Erhart  v.  Dietrich,  118  Mo.  418;  Ham  v.  Barret,  28  Mo. 
388;  Stover  v.  People,  56  N.  Y.  315,  317;  Justice  v.  Lang,  52  N.  Y.  323; 
Brown  v.  Schock,  77  Pa.  471;  Sullivan  v.  Phila.  &  R.  R.  Co.,  30  Pa.  234, 
12  A.  D.  698,  699.  Contra,  Campbell  v.  State,  150  Ind.  74. 

If  tbe  facts  are  not  sufficient  in  law  to  justify  a  presumption  of 
fact,  i.  e.,  an  inference  as  to  the  existence  of  the  fact  in  issue,  then 
the  decision  of  the  case  becomes  a  question  for  the  court,  whose  duty 
it  is  to  dispose  of  the  case  by  dismissal  or  nonsuit,  or  by  directing  a 
verdict.  See  §  3,  supra. 

i«Thayer,  Prel.  Treat.  Ev.  212;  Sun  Mut.  Ins.  Co.  v.  Ocean  Ins.  Co., 


54  LAW   OF  EVIDENCE.  §  14 

This  therefore  seems  to  be  the  vital  distinction  between  pre- 
sumptions of  fact  and  those  of  law.  One  does  not,  and  the 
other  does,  make  a  prima  facie  case  which,  in  the  absence  of 
evidence  in  rebuttal,  requires  a  verdict  in  favor  of  the  party 
for  whom  it  operates.  One  is  for  the  jury  alone.  The  other 
is  for  the  court  alone.  Terms  for  these  more  clearly  descrip- 
tive would  therefore  seem  to  be,  "presumptions  for  the  jury" 
and  "presumptions  for  the  court,"  respectively. 

It  is  not  only  the  right  of  the  court,  but  also  its  duty,  to 
instruct  the  jury  with  reference  to  the  presumptions  of  law 
applicable  to  the  case  on  trial,  distinguishing  between  dis- 
putable and  conclusive  presumptions.17  This  rule,  however, 
is  to  be  taken  with  some  qualifications.  As  will  subsequently 
be  seen,  certain  kinds  of  presumptions  may  be  said  to  fix  the 
burden  of  proof  in  that  sense  of  the  term  which  imposes  on  a 
party  the  necessity  of  convincing  the  jury  of  the  existence  of 
the  facts  essential  to  his  case.18  It  will  also  be  seen  that  pre- 
107  U.  S.  485,  502;  U.  S.  v.  Searcey,  26  Fed.  435;  McArthur  v.  Carrie's 
Adm'r,  32  Ala.  75,  70  A.  D.  529,  537;  Jenkins  v.  Jenkins,  83  Ga.  283, 
20  A.  S.  R.  316,  319;  State  v.  Richart,  57  Iowa,  245;  Stover  v.  People, 
56  N.  Y.  315,  317;  Gregory  v.  Com.,  121  Pa.  611,  6  A.  S.  R..804;  Sul- 
livan v.  Phila.  &  R.  R.  Co.,  30  Pa.  234,  72  A.  D.  698,  700;  Cope  v. 
Humphreys,  14  Serg.  &  R.  (Pa.)  15;  Yarnell  v.  Moore,  3  Cold.  (Tenn.) 
173. 

Whether  evidence  offered  to  rebut  a  presumption  has  in  law  a 
tendency  to  rebut  it  is  a  question  for  the  court.  Sullivan  v.  Phila.  & 
R.  R.  Co.,  30  Pa.  234,  72  A.  D.  698,  700.  If  it  has  this  tendency,  then 
the  question  whether  the  fact  assumed  by  the  presumption  to  exist  does 
exist  in  truth  is  a  question  for  the  jury  on  all  the  evidence.  See  §§ 
16 (c),  17  (b),  infra.  See,  however,  Gregory  v.  Com.,  121  Pa.  611,  6  A.  S. 
R.  804.  The  evidence  adduced  in  rebuttal  may,  however,  be  so  strong  as 
to  make  a  prima  facie  case  in  favor  of  the  party  introducing  it,  in 
which  event  the  court,  must  dispose  of  the  case  as  a  matter  of  law. 
Louisville  &  N.  R.  Co.  v.  Marbury  Lumber  Co.,  125  Ala.  237,  50  L.  R. 
A.  620. 

17  People  v.  De  Fore,  64  Mich.  693,  8  A.  S.  R.  863;  Graham  v.  Hawkins,. 
38  Tex.  628. 


g   15  PRESUMPTIONS.  55 

sumptions  of  all  sorts  may  make  a  prima  facie  case,  and  thus 
cast  on  the  adverse  party  the  necessity  of  going  forward  with 
the  trial  by  adducing  evidence  tending  to  disprove  the  fact 
assumed;19  and  that,  when  evidence  in  rebuttal  is  introduced, 
the  presumption  becomes  functus  officio,  and  disappears,  leav- 
ing the  question  of  the  existence  of  the  fact  which  it  assumed 
to  exist  to  be  determined  by  the  jury  upon  all  the  evidence.80 
Now,  when  a  presumption  relates,  not  to  the  burden  of  con- 
vincing the  jury,  but  to  the  burden  of  adducing  evidence 
merely,  and  evidence  tending  to  rebut  it  has  been  introduced, 
it  would  seem  that,  as  to  this  presumption,  the  jury  ought  to 
receive  no  instructions,  since,  as  has  just  been  said,  the  pre- 
sumption has  served  its  purpose  when  rebutting  evidence  is 
introduced,  and  it  thereupon  vanishes,  and  is  of  no  further 
effect.21 

C.  EVIDENTIAL,  AND  NONEVIDENTIAL  PRESUMPTIONS. 

§  15.  With  regard  to  their  immediate  basis,  presumptions 
may  be  divided  into  two  classes:  (1)  Those  derived  from 
evidential  facts  which  are  deemed  the  legal  equivalent  of  the 
fact  assumed  to  exist;  (2)  those  derived,  not  from  evidential 
facts,  but  solely  from  reasons  of  justice,  policy,  or  expedi- 
ency.22 To  give  rise  to  presumptions  of  the  first  class,  the 
party  invoking  them  must  first  adduce  evidence  of  the  furfda- 
mental  facts  on  which  they  rest.  Their  immediate  basis  is 
the  state  of  facts  thus  proved.  It  is  only  in  a  general  and 
remote  sense  that  •  they  are  founded  on  experience,  justice, 

"Section  17 (b),  infra. 
"Sections  16 (c),  17 (b),  infra. 

20  Sections  16 (c),  17 (b),  infra. 

21  Mo.  Pac.  R.  Co.  v.  Brazzil,  72  Tex.  233. 

22  A  nonevidential  presumption  is  sometimes  based  also  on  the  diffi- 
culty of  obtaining  information  as  to  the  fact  assumed.    Tampa  Water, 
works  Co.  v.  Cline,  37  Fla.  586,  33  L.  R.  A.  376. 


56  LAW   OF   EVIDENCE.  g   15 

policy,  or  convenience.  The  rules  giving  rise  to  them  are  thus 
founded,  but  not  the  presumptions  themselves.  Thus,  to  give 
rise  to  the  presumption  of  death,  the  party  invoking  it  must 
prove  that  the  person  whose  death  is  in  question  has  been  ab- 
sent, unheard  of,  for  seven  years,  since  it  is  on  these  eviden- 
tiary facts  that  the  presumption  rests.  The  immediate  basis 
of  presumptions  of  the  second  class,  on  the  other  hand,  is 
experience,  justice,  policy,  or  convenience,  and  no  evidentiary 
facts  need  be  proved  to  bring  them  into  being.  To  give  rise 
to  the  presumption  of  innocence,  for  instance,  no  fact  need  be 
proved,  since  the  presumption  rests,  not  on  evidentiary  facts, 
but  immediately  on  a  principle  of  natural  justice.23 

The  immediate  operation  of  presumptions  of  the  first  class 
is  to  fix  the  probative  value  of  evidentiary  facts  by  virtue  of 
rules  of  equivalence.  They  are  a  development  of  indirect  or 
circumstantial  evidence,  and  are  the  result  of  rules  of  law  by 
which  a  known  set  of  evidentiary  facts  necessitates,  more  or 
less  arbitrarily,  an  assumption  of  the  existence  'of  a  fact  which 
is  unknown.  Standing  thus  for  evidence  of  the  unknown  fact, 
as  they  do,  they  east  on  the  party  against  whom  they  operate 
the  necessity  of  adducing  evidence  to  disprove  the  fact  so 
assumed ;  but  this  is  their  indirect,  not  their  immediate,  effect. 
Thus,  the  presumption  of  death  results  from  a  rule  making  the 
fact  of  a  person's  absence,  unheard  of,  for  seven  years,  the 
legal  equivalent  of  his  death.  Incidentally,  this  rule  of  equiva- 
lence casts  on  the  party  disputing  the  fact  of  death  the  neces- 
sity of  adducing  evidence  tending  to  disprove  it.  The  im- 
mediate operation  of  presumptions  of  the  second  class,  on  the 
other  hand,  is  to  cast  on  the  party  against  whom  they  operate 
the  burden  of  disproving,  or  of  adducing  evidence  tending  to 
disprove,  the  fact  thus  assumed  to  exist.  This  is  their  only 
effect.  Rules  of  equivalence  they  do  not  fix.  They  relate  to 

.23  Hyde  Park  v.  Canton,  130  Mass.  505,  508. 


§   16a  PRESUMPTIONS.  57 

the  burden  of  proof  alone.  The  presumption  of  innocence,  for 
instance,  does  not  rest  on  any  state  of  facts  which  is  made  the 
legal  equivalent  of  innocence.  It  is  based  immediately  upon 
a  principle  of  natural  justice,  and  its  sole  effect  is  to  cast  on 
the  state  the  burden  of  establishing  guilt.  It  is  thus  seen  that, 
while  the  ultimate  effect  of  these  two  classes  of  presumptions 
may  be  the  same,  yet  their  immediate  operation  is  different. 

Presumptions  of  the  first  class  are  the  outgrowth  of  cir- 
cumstantial or  indirect  evidence,  and  they  are  closely  related 
to  it.  Presumptions  of  the  second  class  are  not  a  development 
of  any  sort  of  evidence,  but  are  "general  maxims  of  legal  rea- 
soning, having  no  peculiar  relation  to  the  law  of  evidence."24 
For  want  of  better  terms,  these  two  classes  may  therefore  be 
called  "evidential"  and  "nonevidential"  presumptions,  re- 
spectively.25 

These  two  classes  of  presumptions  differ  in  origin  and  de- 
velopment, and  in  some  respects  in  their  practical  effect,  and 
the  distinction  between  them  proves  helpful  in  dealing  with 
the  so-called  conflict  of  presumptions. 

§  16.    Evidential  presumptions. 

(a)  Origin.  Evidence  is  either  direct  or  indirect.  Direct 
evidence  is  that  which  authenticates  the  ultimate  fact,  that 

24  See  Thayer,  Prel.  Treat.  Ev.  335. 

?5  Evidential  and  nonevidential  presumptions  seem  to  correspond 
with  the  special  and  general  presumptions,  respectively,  mentioned  In 
Best,  Ev.  (Int.  Ed4.)  §  331.  Nonevidential  presumptions  have  been 
called  spurious  because  they  have  "nothing  to  do  with  evidence  or  in- 
ference." McKelvey,  Ev.  p.  78.  So  far  as  having  to  do  with  infer- 
ence is  concerned,  no  true  presumption  has  anything  to  do  with  that; 
and  so  far  as  having  to  do  with  evidence  is  concerned,  this  is  not  a 
test  of  the  genuineness  of  a  presumption.  As  Professor  Thayer  has 
said,  presumptions  "relate  to  the  whole  field  of  argument,  wherever 
and  by  whomsoever  conducted;  and  also  to  the  whole  field  of  the  law, 
in  so  far  as  it  has  been  shaped  and  is  being  shaped  by  the  process  of 
reasoning."  Prel.  Treat.  Ev.  314. 


58  LAW   OF  EVIDENCE.  §   16a 

is,  the  very  fact  in  issue;  as  where,  on  a  murder  trial,  a  wit- 
ness testifies  that  he  saw  defendant  stab  the  deceased,  who 
immediately  died.  Indirect  evidence  is  that  which  authenti- 
cates, not  the  ultimate  fact,  but  evidentiary  facts,  that  is,  facts 
from  which  an  inference  may  be  drawn  of  the  existence  of 
the  ultimate  fact;  as  if,  in  the  illustration  just  given,  the  wit- 
ness should  testify,  not  that  he  saw  defendant  stab  the  de- 
ceased, but  that  he  saw  him  draw  a  knife  from  deceased's 
side,  fling  it  into  a  river  near  by,  and  hurry  away,  the  knife 
afterwards  being  found  and  identified  as  defendant's.  Di- 
rect evidence  appeals  only  to  the  belief  of  the  jury.  Indirect 
evidence,  on  the  other  hand,  appeals,  first,  to  the  belief  of  the 
jury,  and,  second  and  characteristically,  to  their  reason.  If 
direct  evidence  is  believed,  the  jury  can  but  find  that  the  fact 
in  issue  exists.  Their  belief  in  the  truth  of  indirect  evidence 
does  not  thus  dispose  of  the  matter;  in  spite  of  that  belief, 
they  may  decline  to  infer  the  existence  of  the  ultimate  fact. 

Evidential  presumptions  are  a  development  'of  indirect  evi- 
dence. In  the  mass  of  cases  that  came  before  the  courts  for 
trial,  it  was  inevitable  that  certain  evidentiary  facts  should 
often  recur.  The  effect  of  these  as  evidence  of  the  ultimate 
fact  in  issue  was  originally,  in  all  cases,  a  matter  of  inference, 
— a  question  of  fact  to  be  determined  by  the  jury  under  ap- 
propriate instructions  from  the  court;  but  when  case  after 
case  had  presented  itself  with  like  evidentiary  facts,  it  was 
only  natural  that  the  courts  should  begin  to  advise  the  jury 
as  to  the  inference  which  they  might  draw  from  those  facts. 
At  first,  no  more  was  done  than  to  inform  the  jury  that  they 
"might"  draw  a  particular  inference  from  the  facts  in  evi- 
dence. Later  it  was  told  them  that  that  inference  "ought" 
to  be  drawn.  And  it  finally  came  about  that  the  jury  were 
instructed  that  that  inference  "must"  be  drawn.26  Now,  when 

2c  Thayer,  Prel.  Treat.  Ev.  317. 


§   16b  PRESUMPTIONS.  59, 

this  stage  was  reached,  as  it  was  reached  in  many  cases,  what 
had  theretofore  been  an  inference — the  result  of  the  exercise 
of  the  rational  faculty — became  a  conclusion  of  law,  depend- 
ent in  no  wise  upon  the  jury's  view  of  its  propriety;  in  other 
words,  what  was  originally  an  inference  became  a  presump- 
tion,— an  assumption  or  a  taking  for  granted  under  the  sanc- 
tion of  the  law.27  In  this  manner,  evidential  presumption* 
came  into  being. 

(b)  Nature.  Evidential  presumptions  are  assumptions  of 
fact  sanctioned  by  rules  of  law  which  establish  the  equivalence 
of  a  known  evidentiary  fact  or  group  of  facts  with  an  unknown 
ultimate  fact.28  Thus,  if  it  is  proved,  on  a  trial  for  bigamy, 
for  instance,  that  the  former  spouse  had,  at  the  time  of  the 
accused's  second  marriage,  been  absent  and  unheard  of  for 
seven  years,  a  presumption  arises  that  he  or  she  was  then  dead. 
Known  absence,  without  tidings,  for  seven  years,  is  thus  made 

"Cases  with  common  features  constantly  recur,  and  the  best  mode 
of  dealing  with  them  may  be  learned  by  experience."  Saunders  v. 
Saunders  [1897]  Prob.  Div.  89,  94. 

ZT  "Matter,  logically  evidential  [thus  becomes]  the  subject  of  a  rule 
which  directly,  although  only  prima  facie,  annexes  to  it  legal  conse- 
quences belonging  to  the  facts  of  which  it  is  evidence;  and  this  rule 
takes  its  place  in  the  substantive  law  as  a  subsidiary  proposition,  along- 
side  of  the  main  and  fundamental  one,  as  an  aid  in  the  application  of 
it.  The  law  *  *  *  is  always  growing  in  this  way,  through  Judi- 
cial determinations,  for  the  application  of  the  ultimate  rule  of  the 
substantive  law  has  to  be  made  by  reasoning;  and  this  process  is  for- 
ever discovering  the  identity,  for  legal  and  practical  purposes,  of  one 
state  of  things  with-  some  other.  Many  facts  and*  groups  of  facts 
often  recur;  and  when  a  body  of  men,  with  a  continuous  tradition,  has 
carried  on  for  some  length  of  time  this  process  of  reasoning  upon  facts 
that  often  repeat  themselves,  they  cut  short  the  process  and  lay  down 
a  rule.  To  such  facts  they  affix,  by  a  general  declaration,  the  char- 
acter and  operation  which  common  experience  has  assigned  to  them." 
Thayer,  Prel.  Treat.  Ev.  326. 

zsMcArthur  v.  Carrie's  Adm'r,  32  Ala.  75,  70  A.  D.  529,  537;  Tanner 
v.  Hughes,  53  Pa.  289. 


60  LAW   OF   EVIDENCE.  §   16b 

the  legal  equivalent  of  the  unknown  fact  as  to  death.  This 
fixing  of  equivalence  between  facts  is  the  characteristic  fea- 
ture of  this  sort  of  presumption. 

Presumptions  of  fact,  so  called,  must  be  distinguished  in 
the  present  connection,  since  they  are  mere  inferences  unaf- 
fected by  rule  of  law.  From  a  set  of  known  evidentiary  facts 
the  jury  may,  it  is  true,  draw  an  inference  as  to  the  existence 
of  the  unknown  ultimate  fact,  and  thus,  to  their  minds,  an 
equivalence  in  the  particular  case  may  exist.  But  this  equiva- 
lence is  not  fixed  by  law,  and  it  may  not  exist  for  different 
juries  in  like  cases.  It  is  therefore  not  a  rule,  but  only  an 
isolated  process. 

Evidential  presumptions  are  sometimes  defined  as  arbitrary 
inferences  which  the  law  requires  the  court  and  jury  to  draw 
from  known  facts,29  but  such  a  definition  is  not  accurate.  In 
policy,  indeed,  these  presumptions  are  generally  founded  "ei- 
ther upon  the  first  principles  of  justice,  or  the  laws  of  nature, 
or  the  experienced  course  of  human  conduct  and  affairs,  and 
the  connection  usually  found  to  exist  between  certain 
things";30  but  they  are  not  infe'rences.  An  exercise  of  the 
rational  faculty  is  not  needed  to  give  them  effect.  Indeed,  an 
exercise  of  this  faculty  is  precluded,  not  required,  by  the  rules 
of  presumption.  When  the  prescribed  evidentiary  facts  be- 
come known,  they  are  accorded  by  these  rules  a  certain  effect 
in  dispensing,  either  tentatively  or  absolutely,  with  further 
evidence  of  the  ultimate  fact.  In  other  words,  the  court  and 
jury  are  bound  to  assume  (not  to  infer)  the  existence  of  the 
ultimate  fact,  whatsoever  conclusion  they  might  come  to  if 

29  Stephens,  Dig.  Ev.  art.  1;  Ulrich  v.  Ulrich,  136  N.  Y.  120,  123. 

sol  Greenl.  Ev.  §  15;  U.  S.  v.  Searcey,  26  Fed.  435;  Judson  v.  Giant 
Powder  Co.,  107  Cal.  549,  556,  48  A.  S.  R.  146,  150;  McCagg  v.  Heacock, 
34  111.  476,  85  A.  D.  327;  Wilson  v.  Hayes,  40  Minn.  531,  12  A.  S.  R. 
754,  759. 


g   16c  PRESUMPTIONS.  g| 

they  were  left  to  decide  the  matter  by  drawing  inferences 
from  the  known  evidentiary  facts  independently  of  the  rule 
of  presumption.31  A  rule  of  presumption,  therefore,  estab- 
lishes the  equivalence  of  certain  facts,  so  that,  when  one  fact 
becomes  known,  tne  other  must  be  assumed  to  exist,  either  ab- 
solutely or  until  evidence  tending  to  prove  its  nonexistence  is 
adduced  by  the  party  against  whom  the  presumption  operates. 
(c)  Effect.  Evidential  presumptions  rest  on  rules  making 
a  known  set  of  facts  the  legal  equivalent  of  an  unknown  fact, 
in  the  absence  of  evidence  to  the  contrary.  Until  evidence  in 
rebuttal  is  adduced  by  the  party  against  whom  they  operate, 
they  therefore  take  the  place  of  evidence,  and  stand  for  prima 
facie  proof  of  the  fact  assumed  to  exist.  This  is  their  primary 
effect.  Incidentally  they  cast  the  burden  of  adducing  evi- 
dence in  rebuttal  on  the  party  against  whom  they  operate,  re- 
quiring him  to  go  forward  with  the  trial.  If  he  fails  to  do 
this,  then  the  presumption  stands  for  absolute  proof,  and,  if 

si  "To  say,  as  sometimes  happens,  that  in  such  cases  there  is  'a  rule 
of  law  that  courts  and  judges  shall  draw  a  particular  inference,'  is  a 
loose  and  misleading  expression,  for  it  involves  the  misconception  that 
the  law  has  any  rules  at  all  for  conducting  the  process  of  reasoning. 
It  would  be  accurate  to  say  that  the  rule  of  law  requires  a  judge  to 
stop  short  in  the  process  of  drawing  inferences,  or  not  to  enter  upon 
it  at  all;  to  assume  for  the  time  that  one  fact  is,  in  legal  effect,  the 
same  as  a  certain  other.  The  rule  fixes  the  legal  effect  of  a  fact, — 
its  legal  equivalence  with  another;  and  it  makes  no  difference,  in  the 
essential  nature  of  the  rule,  whether  this  effect  is  fixed  absolutely  or 
prima  facie:  it  gives  a  legal  definition.  Such  is  the  nature  of  all  rules 
to  determine  the  legal  effect  of  facts  as  contrasted  with  their  logical 
effect.  To  prescribe  and  fix  a  certain  legal  equivalence  of  facts  is  a 
very  different  thing  from  merely  allowing  that  meaning  to  be  given 
to  them.  A  rule  of  presumption  does  not  merely  say  that  such  and 
such  a  thing  is  a  permissible  and  usual  inference  from  other  facts, 
but  it  goes  on  to  say  that  this  significance  shall  always,  in  the  absence 
of  other  circumstances,  be  imputed  to  them;  sometimes  passing  first 
through  the  stage  of  saying  that  it  ought  to  be  imputed."  Thayer, 
Prel.  Treat.  Ev.  316. 


<52  LAW   OF  EVIDENCE.  §   16c 

the  fact  thus  assumed  to  exist  is  the  only  fact  in  issue,  he  will 
lose  as  a  matter  of  law.  Under  such  circumstances,  it  is  the 
court's  duty  to  enter  a  nonsuit  or  dismissal,  or  to  direct  a  ver- 
dict against  the  party  against  whom  the  presumption  oper- 
ates.32 

If,  on  the  other  hand,  the  party  against  whom  a  presump- 
tion operates  takes  up  the  burden  thus  cast  on  him,  and 
adduces  evidence  tending  to  disprove  the  fact  assumed  to  ex- 
ist, the  presumption  is  dispelled.  It  becomes  functus  officio, 
and  has  no  further  effect  in  the  trial,  and  all  the  evidence 
concerning  the  fact  assumed  to  exist,  including  the  evidence 
of  those  facts  which  gave  rise  to  the  presumption,  is  to  be 
considered  together  as  a  whole,  without  reference  to  any  pre- 
sumption. From  this  mass  of  evidence  the  jury  are  to  find 
the  truth  as  to  the  fact  formerly  assumed  to  exist,  unham- 
pered by  any  arbitrary  rule,  and  guided  only  by  reason.33 

These  remarks  apply  only  to  disputable  presumptions  of 
law.  Presumptions  of  fact,  so  called,  do  not  make  a  prima 
facie  case  which  casts  the  burden  of  adducing  evidence  on 


r,  Prel.  Treat.  Ev.  336;  Banbury  Peerage  Case,  1  Sim.  &  S. 
153,  Thayer,  Gas.  Ev.  45;  Lincoln  v.  French,  105  U.  S.  614;  McArthur 
v.  Carrie's  Adm'r,  32  Ala.  75,  70  A.  D.  529,  537;  Metropolitan  St.  R. 
Co.  v.  Powell,  89  Ga.  601;  Adams'  Ex'rs  v.  Jones'  Adm'r,  39  Ga.  479; 
Knisely  v.  Sampson,  100  111.  573;  Graves  v.  Colwell,  90  111.  612;  Adams 
v.  Slate,  87  Ind.  573;  Bates  v.  Pricket,  5  Ind.  22,  61  A.  D.  73;  Market 
&  F.  Nat.  Bank  v.  Sargent,  85  Me.  349,  35  A.  S.  R.  376;  Tanner  v. 
Hughes,  53  Pa.  289;  Thomson  v.  Porter,  4  Strob.  Eq.  (S.  C.)  58,  53 
A.  D.  653;  Hale  v.  Pack's  Ex'rs,  10  W.  Va.  145.  See,  also,  §  4,  supra. 

s  s  Thayer,  Prel.  Treat.  Ev.  346;  Anderson  v.  Morice,  L.  R.  10  C.  P. 
58;  Jones  v.  Bond,  40  Fed.  281,  Thayer,  Gas.  Ev.  94;  Gibson  v.  Inter- 
national Trust  Co.,  177  Mass.  100,  52  L.  R.  A.  928;  Huntley  v.  Whittier, 
105  Mass.  391,  7  A.  R.  536;  Adair  v.  Adair,  5  Mich.  204,  71  A.  D.  779, 
784;  Jackson  v.  Sackett,  7  Wend.  (N.  Y.)  94;  Sullivan  v.  Phila.  &  R.  R. 
Co.,  30  Pa.  234,  72  A.  D.  698;  Trumble  v.  Ter.,  3  Wyo.  280,  6  L.  R.  A. 
384.  See,  however,  Graves  v.  Colwell,  90  111.  612;  Gregory  v.  Com.,  121 
Pa.  611,  6  A.  S.  R.  804. 


§   I6d  PRESUMPTIONS.  63 

the  opposite  party,  and,  in  the  absence  of  evidence  to  the  con- 
trary, requires  a  finding  in  his  favor  as  to  the  assumed  fact.34 
They  do  not  rest  on  legal  rules  of  equivalence;  they  are  mere 
inferences,  and  whether  or  not  they  shall  be  indulged  is  a 
question  for  the  jury  alone.  Nor  do  conclusive  presumptions 
have'  any  effect  on  the  burden  of  adducing  evidence.  They 
are  indirect  expressions  of  rules  of  substantive  law  establish- 
ing the  legal  insignificance  of  the  nonexistence  of  the  fact  as- 
sumed to  exist.  Evidence  is  not  admissible  to  disprove  that 
fact,  and  if,  by  any  chance,  it  is  adduced,  or  the  nonexistence 
of  the  fact  is  admitted,  it  has  no  effect.  The  rights  of  the  par- 
ties are  the  same,  whether  the  fact  exists  or  not.85 

Evidential  presumptions  relate  to  the  burden  of  proof  only 
in  that  sense  of  the  term  which  casts  on  a  party  the  necessity 
of  adducing  evidence  to  dispel  a  prima  facie  case.  They  do 
not  fix  the  burden  of  proof,  in  its  proper  sense,  as  meaning 
the  burden  of  convincing. the  jury,  on  a  consideration  of  the 
entire  body  of  the  evidence,  of  the  existence  of  the  facts  on 
which  the  right  of  action  or  defense  depends.36 

(d)  Mode  of  establishing  facts  founding  presumption.  The 
facts  founding  an  evidential  presumption  may  become  known 
to  the  court  in  due  course  of  proceeding87  in  either  of  three 

s*  See  §§  3 (a),  4 (a),  12,  14,  supra. 

so  See  §  13 (a),  supra. 

seThayer,  Prel.  Treat.  Ev.  384;  Mexican  Cent.  R.  Co.  v.  Lauricella, 
87  Tex.  277,  47  A.  S.  R.  103.  See,  however,  Graves  v.  Colwell,  90  111. 
€12. 

87  Under  abnormal  -circumstances,  these  facts  may  become  known 
to  the  court  also  by  pleading.  It  is  an  established  rule  that  a  plead- 
ing should  aver  not  evidentiary,  but  ultimate,  facts.  Gulick  v.  Loder, 
13  N.  J.  Law,  68,  23  A.  D.  711.  If  this  rule  is  observed,  it  follows 
that,  if  the  ultimate  facts  so  stated  are  denied  by  the  adversary,  no 
presumption  of  their  existence  can  arise  on  the  pleadings,  for  the  rea- 
son that  no  evidentiary  facts  are  set  forth  on  which  a  presumption 
might  be  based;  and  if  the  ultimate  facts  so  stated  are  admitted  by 


64  LAW   OF   EVIDENCE.  ' 

ways,  namely,  by  judicial  notice,  by  admission,  or  by  evidence. 
Ordinarily,  the  evidentiary  facts  are  established  by  evidence. 
They  may,  however,  be  admitted  in  the  trial,  or  be  recognized 
by  the  court  without  evidence  if  they  are  a  proper  subject  of 
judicial  notice.  In  either  case  the  result  is  the  same.  Beingr 

• 

aware  of  the  facts,  either  through  evidence,  admission,  or  judi- 
cial notice,  the  court  must  indulge  any  presumption  that  the 
facts  justify. 

In  the  absence  of  admission  or  judicial  notice,  the  facts  es- 
sential to  give  rise  to  a  presumption  must  be  established  by 
evidence.  A  presumption  cannot  rest  on  a  presumption.  This, 
is  especially  true  of  the  so-called  presumption  of  fact.38 

the  adversary,  then  of  course  there  is  no  occasion  for  any  presump- 
tion of  their  existence.  Assume  now,  on  the  other  hand,  that  this, 
rule  of  pleading  is  not  observed,  and  that,  instead  of  pleading  the  ulti- 
mate fact,  facts  evidential  of  it  are  set  forth.  If  the  adversary,  waiv- 
ing the  violation  of  the  rule,  denies  the  facts  so  alleged,  no  presump- 
tion can  be  based  on  them  until  evidence  of  their  existence  is  ad- 
duced. This  being  done,  a  presumption  may  arise,  which,  however,  is 
based,  not  upon  the  facts  pleaded,  but  upon  the  evidence  of  those 
facts.  Finally,  assuming  that  the  adversary,  waiving  the  violation  of 
the  rule  of  pleading,  admits  the  evidentiary  facts  set  forth,  then,  it 
seems,  the  existence  of  the  unpleaded  ultimate  fact  might  be  pre- 
sumed, and  this  presumption  would  be  based  upon  the  pleadings.  A 
presumption  from  the  pleadings  would  not  thus  arise,  it  will  be  ob- 
served, in  the  due  course  of  proceeding.  To  bring  it  into  existence^ 
there  must  first  be  a  violation  of  a  rule  of  pleading  and  a  waiver 
thereof. 

ss  u.  S.  v.  Ross,  92  U.  S.  281,  284;  Manning  v.  J.  Hancock  Mut.  L. 
Ins.  Co.,  100  U.  S.  693;  U.  S.  v.  Carr,  132  U.  S.  644,  653;  Simpson  v. 
State,  56  Ark.  8,  17;  Pennington's  Ex'rs  v.  Yell,  11  Ark.  212,  52  A.  D. 
262;  Globe  Ace.  Ins.  Co.  v.  Gerisch,  163  111.  625,  54  A.  S.  R.  486;  Ellis 
v.  Ellis,  58  Iowa,  720;  Yarnell  v.  Kan.  City,  Ft.  S.  &  M.  R.  Co.,  113 
Mo.  570,  580,  18  L.  R.  A.  599,  602;  Phila.  City  Pass.  R.  Co.  v.  Henrice, 
92  Pa.  431,  37  A.  R.  699;  McAleer  v.  McMurray,  58  Pa.  126;  Douglass 
v.  Mitchell's  Ex'r,  35  Pa.  440;  Mo.  Pac.  R.  Co.  v.  Porter,  73  Tex.  304; 
Doolittle  v.  Holton,  26  Vt.  588;  Richmond  v.  Aiken,  25  Vt.  324.  See 
Terry  v.  Rodahan,  79  Ga.  278,  11  A.  S.  R.  420,  431.  It  has  been  held. 


g   17a  PRESUMPTIONS.  65 

§  17.    Noneviclential  presumptions. 

(a)  Nature.  The  distinction  between  evidential  and  non- 
evidential  presumptions  lies  both  in  their  origin  and  in  their 
immediate  operation  and  effect.39  Evidential  presumptions 
are  a  development  of  circumstantial  evidence,  and  their  im- 
mediate consequence  is  to  fix  the  equivalence  of  a  group  of 
evidentiary  facts  with  an  unknown  ultimate  fact.  Noneviden- 
tial  presumptions,  on  the  other  hand,  are  not  an  outgrowth  of 
evidence,  nor  do  they  define  the  probative  effect  of  evidentiary 
facts.  They  are  rules  of  positive  law  stated  in  the  form  of 
presumptions.  They  may  relate  to  the  substantive  law  or  to 
the  law  of  procedure.  In  either  case  they  have  nothing  to  do 
with  evidence,  and  are  always  convertible  into  rules  of  posi- 
tive law.40  Being  such  in  reality,  they  rest  on  the  same  basis. 
They  are  immediately  founded  on  the  same  considerations  of 
justice,  policy,  and  expediency  as  give  rise  to  their  correlative 
rules  of  positive  law. 

It  has  been  denied  that  nonevidential  presumptions  are  true 
presumptions,  but  this  seems  doubtful.  Presumption  is  merely 
a  mental  process, — the  taking  of  a  fact  for  granted.  If,  there- 
fore, the  court,  in  arriving  at  a  decision,  adopts  this  process, 
how  can  it  be  said  that  in  that  case  the  presumption  does  not 
exist?  The  process  of  presumption  may  have  been  an  unnec- 
essary one,  either  because,  as  in  the  case  of  conclusive  pre- 
sumptions, the  existence  of  the  assumed  fact  is  legally  insignifi- 
cant and  of  no  effect  on  the  rights  of  the  parties,  or  because, 

however,  that  a  fact  in  the  nature  of  an  inference  drawn  from  facts 
in  evidence  may  itself  be  taken  as  the  basis  of  a  new  inference.  Hin- 
shaw  v.  State,  147  Ind.  334;  7  Current  Law,  1515. 

89  Sections  15,  16,  supra. 

40  The  presumption  that  a  minor  is  not  emancipated,  for  example, 
means  simply  that  the  party  alleging  emancipation  must  prove  it.  Lis- 
bon v.  Lyman,  49  N.  H.  553,  563. 

Hammon,  Ev. — 5. 


66  LAW    OF   EVIDENCE.  §    17a 

without  indulging  any  presumption,  established  rules  of  posi- 
tive law  would  otherwise  lead  to  the  same  conclusion  as  that  at 
which  the  court  arrived  by  assuming  the  fact  to  exist.  But 
these  considerations  seem  to  affect  the  propriety  of  the  pre- 
sumption, rather  than  its  existence;  and  while  it  is  true  that 
these  presumptions,  as  such,  are  generally  unnecessary  and  use- 
less,41 and  may  be  regarded  as  mere  figures  of  speech,42  yet,  as 
presumptions,  they  do  in  fact  exist. 

Many  nonevidential  presumptions  are  associated  in  the 
minds  of  the  profession  with  the  law  of  evidence,  and  their  ef- 
fect will  be  considered  in  these  pages.  On  the  other  hand, 
many  are  not.  Presumptions  indulged  in  construing  special 
verdicts,43  and  in  proceedings  on  appeal  and  in  error,44  for 
instance,  are  seldom  linked  with  evidence,  and  they  may  there- 
fore be  excluded  from  the  present  discussion.  For  the  like 
reason,  no  consideration  need  be  given  those  presumptions 
which  are  usually  considered  as  belonging,  as  in  truth  they 
do  belong,  to  various  topics  of  substantive  law  and  procedure, 
such  as  those  relating  to  the  validity,  meaning,  and  effect  of 
statutes45  and  ordinances,46  pleadings,47  contracts48  and  other 
writings,49  and  private  conduct.50 

41  State  v.  Pike,  49  N.  H.  399,  6  A.  R.  533,  587. 

42  See  Blackburn  v.  Vigors,  17  Q.  B.  Div.  553,  556;  State  v.  Pike,  49 
N.  H.  399,  6  A.  R.  533,  543. 

43  Lawrence  v.  Beaubien,  2  Bailey    (S.  C.)    623,  23  A.  D.  155.     See 
Thayer,  Prel.  Treat.  Ev.  331. 

44  Adams  v.  Main,  3  Ind.  App.  232,  50  A.  S.  R.  266;  Be-slow  v.  Shen- 
berger,  52  Neb.  164,  66  A.  S.  R.  487;  Searls  v.  Knapp,  5  S.  D.  325,  49 
A.  S.  R.  873;    State  v.  Kessler,  15  Utah,  142,  62  A.  S.  R.  911;   Jarvis 
v.  N.  W.  Mut.  Relief  Ass'n,  102  Wis.  546,  72  A.  S.  R.  895. 

45  in  re  Garcelon's  Estate,  104  Gal.  570,  43  A.  S.  R.  134;   People  v. 
Briggs,  50  N.  Y.  553;   State  v.  Moore,  104  N.  C.  714,  17  A.  S.  R.  696; 
Mauldin  v.  City  Council,  42  S.  C.  293,  46  A.  S.  R.  723;   Chamberlain 
v.  Wood,  15  S.  D.  216,  91  A.  S.  R.  674. 

46Twilley  v.  Perkins,  77  Md.  252,  39  A.  S.  R.  408;  Littlefield  v.  State, 


§   17b  *    PRESUMPTIONS.  67 

(b)  Effect.  Many  nonevidential  presumptions  affect,  in  a 
sense,  the  burden  of  proof  in  one  or  the  other  of  the  two 
meanings  of  that  term. 

Effect  on  burden  of  going  forward  with  trial  by  addu- 
cing evidence  of  nonexistence  of  assumed  fact.  Nonevidential 
presumptions  may  be  regarded  as  making  a  prima  facie  case 
as  to  the  fact  assumed,  and  thus  casting  on  the  opposite  party 
the  burden  of  adducing  evidence  to  the  contrary.51  They  do 
this,  not  by  virtue  of  a  rule  of  law  making  certain  facts  of 
which  evidence  has  been  adduced  the  equivalent  of  the  fact 
assumed,  as  is  the  case  with  evidential  presumptions,  but  by 
virtue  of  their  influence  as  rules  of  positive  law  on  trial  pro- 
cedure.52 Their  effect  in  this  respect  is,  however,  the  same 
with  evidential  presumptions.  They  stand  for  proof  of  the 
fact  assumed,  but  only  until  contradicted.  When  evidence  in 
rebuttal  is  adduced,  the  presumption  is  dispelled,  the  prima 
facie  case  disappears,  and  all  the  evidence  as  to  the  fact  for- 

42  Neb.  223,  47  A.  S.  R.  697;  Ex  parte  Wygant,  39  Or.  429,  87  A.  S.  R. 
673. 

«  Brighton  v.  White,  128  Ind.  320;  Louisville  v.  Hyatt,  2  B.  Mon. 
(Ky.)  177,  36  A.  D.  594;  State  v.  Dale,  141  Mo.  284,  64  A.  S.  R.  513; 
W.  U.  Tel.  Co.  v.  Robinson,  97  Tenn.  638,  34  L.  R.  A.  431;  State  v. 
Kempf,  69  Wis.  470,  2  A.  S.  R.  753. 

« Anderson  v.  Morice,  L.  R.*  10  C.  P.  609;  Richelieu  Hotel  Co.  v. 
International  M.  E.  Co.,  140  111.  248,  33  A.  S.  R.  234;  Kernochan  v. 
Murray,  111  N.  Y.  306,  7  A.  S.  R.  744;  Bowman  v.  First  Nat.  Bank,  9 
Wash.  614,  43  A.  S.  R.  870. 

<»  Culver  v.  Marks,  122  Ind.  554,  17  A.  S.  R.  377. 

so  Davis  v.  Fish,  1  G.' Greene  (Iowa)  406,  48  A.  D.  387;  Home  F.  Ins. 
Co.  v.  Barber  (Neb.)  60  L.  R.  A.  927. 

si  Sturdevant's  Appeal,  71  Conn.  392,  Thayer,  Cas.  Ev.  95,  96;  In  re 
Barber's. Estate,  63  Conn.  393,  22  L.  R.  A.  90,  95;  Brighton  v.  White, 
128  Ind.  320;  Market  &  F.  Nat.  Bank  v.  Sargent,  85  Me.  349,  35  A.  S. 
R.  376;  State  v.  Pike,  49  N.  H.  399,  6  A.  R.  533,  544;  Wood  v.  More- 
house,  45  N.  Y.  368;  Weiss  v.  Pa.  R.  Co.,  79  Pa.  387. 

52  Sturdevant's  Appeal,  71  Conn.  392,  Thayer,  Cas.  Ev.  95,  96;  Lis- 
bon v.  Lyman,  49  N.  H.  553,  563. 


68  LAW   OP  EVIDENCE.  §   17b 

merly  assumed  is  to  be  considered  as  a  whole,  and  the  jury 
are  to  find  according  to  the  truth.53 

Effect  on  burden  of  convincing  jury  of  nonexistence  of 

assumed  fact.  Nonevidential  presumptions,  unlike  evidential 
presumptions,  may  be  regarded  as  determining  on  whom  the 
burden  of  proof  rests,  in  that  sense  of  the  term  which  requires 
a  party  to  convince  the  jury  of  the  existence  of  the  facts  on 
which  his  case  depends.54  They  do  this,  however,  not  because 
they  are  presumptions,  but  because  they  are  positive  rules  of 
law  affecting  substantive  rights  or  pleading.55  Thus,  it  is 
only  a  rule  of  natural  justice  that  no  one  shall  be  punished 
as  for  crime  until  he  is  proven  guilty.  This  rule  does  not  de- 
pend on  any  presumption  of  innocence;  rather,  the  presump- 
tion depends  upon  the  rule.  To  say  that  a  man  is  presumed 
innocent  is  only  converting  the  positive  rule  into  the  indirect 
form  of  a  presumption. 

Being  in  reality  positive  rules  of  law,  nonevidential  pre- 
sumptions have  the  same  effect  as  have  those  rules.  In  so  far, 
therefore,  as  they  affect  the  burden  of  proof  in  the  sense  of 
burden  of  convincing  the  jury  of  the  facts  essential  to  the 
cause  of  action  or  defense,  they  continue  throughout  the  trial 
and  until  the  verdict  is  found.  By  adducing  evidence  in  re- 
buttal, the  party  against  whom  they  operate  does  not  there- 
upon dispel  them,  as  in  those  cases  where  the  presumption, 
whether  evidential  or  nonevidential,  makes  a  prima  facie  case 
which  requires  the  opposing  party  to  go  forward  with  the 
trial  by  adducing  evidence  in  rebuttal.  They  do  not  there- 

ss  Phila.,  W.  &  B.  R.  Co.  v.  Stebbing,  62  Md.  504,  518;  McGinnis  v. 
Kempsey,  27  Mich.  363;  Wilson  v.  Hayes,  40  Minn.  531,  12  A.  S.  R.  754; 
Rapp  v.  St.  J.  &  I.  R.  Co.,  106  Mo.  423;  Morton  v.  Heidorn,  135  Mo.  608, 
617;  Owens  v.  R.  &  D.  R.  Co.,  88  N.  C.  502,  511,  512.  See,  however, 
In  re  Barber's  Estate,  63  Conn.  393,  22  L.  R.  A.  90. 

5*  McMillan  v.  School  Committee,  107  N.  C.  609,  10  L.  R.  A.  823. 

55  See  Thayer,  Prel.  Treat.  Ev.  384. 


§  18 


PRESUMPTIONS. 


upon  become  functus  officio,  because  their  office  in  this  connec- 
tion is  not  to  make  a  prima  facie  case,  but  to  say  who  must 
bear  the  burden,  upon  all  the  evidence,  of  convincing  the 
jury  of  the  existence  of  a  state  of  facts  contrary  to  that  which 
they  assume  to  exist.  When  this  opposing  state  of  facts  is 
thus  established  in  the  minds  of  the  jury,  and  not  until  then, 
this  burden  and  its  correlative  presumption  are  discharged 
and  disappear.  Thus,  it  is  a  rule  of  positive  law  that  the 
state  must  prove  the  guilt  of  a  man  prosecuted  for  crime. 
This  burden  rests  on  the  state  throughout  the  trial.  It  does 
not  shift  when  the  state  makes  a  prima  facie  case  of  guilt.  A 
prima  facie  case  casts  on  the  accused  the  necessity  of  going 
forward  with  the  trial  by  adducing  evidence  to.  the  contrary, 
but  it  does  not  affect  the  burden  of  establishing  guilt.  This 
burden  is  not  discharged  until  the  jury,  upon  considering  the 
entire  body  of  evidence  adduced  in  the  trial,  are  convinced 
of  the  accused's  guilt.  The  presumption  of  innocence  being 
merely  an  indirect  statement  of  this  rule  as  to  the  burden  of 
proof,  it  operates  in  the  same  way.  It  doe?  not  disappear 
when  the  state  adduces  evidence  of  guilt.  It  has  not  served 
its  purpose  until  the  jury  have  become  convinced  of  guilt. 
Again,  if  a  man  seeks  to  avoid  a  contract  on  the  ground  that 
he  was  insane  when  he  entered  into  it,  he  must  convince  the 
jury  of  that  fact.  This  is  a  rule  of  positive  law.  Stating  it 
indirectly,  we  have  an  application  of  the  presumption  of  sanity. 
Now,  when  this  party  adduces  evidence  of  insanity,  the  pre- 
sumption does  not -vanish, — the  burden  of  proving  insanity 
still  remains  upon  him;  and  this  burden  and  its  correlative 
presumption  are  not  discharged  and  overcome  until  the  jury 
are  convinced  that  he  was  insane. 

D.  CONFLICT    OF    PRESUMPTIONS. 

§  18.    Several  presumptions  may  arise  in  the  same  case, 
and  of  these  all  may  be  in  favor  of  one  party,  or  some  may 


70  LAW   OF   EVIDENCE.  §   18 

be  in  his  favor  and  some  against  him.  So  long  as  the  facts 
thus  assumed  are  consistent  with  each  other,  it  is  obvious 
that  the  several  presumptions  do  not  come  into  conflict,  even 
though  one  presumption  favors  one  party  and  the  other  fa- 
vors his  adversary.  If,  however,  two  presumptions  relate  to 
the  same  fact,  or  to  some  essential  element  of  it,  and  one  as- 
sumes that  fact  to  exist,  and  the  other  assumes  it  or  some 
element  of  it  not  to  exist,  the  presumptions  are  said  to  come 
into  conflict.  This  conflict,  however,  is  only  apparent,  as 
an  inquiry  into  the  nature  and  effect  of  the  presumptions 
will  show.56  The  key  to  the  situation  is  found  in  the  rela- 
tion of  the  presumptions  to  the  burden  of  proof;  and  in  this 
connection  it  -is  important  to  keep  in  mind  the  distinction 
between  the  two  meanings  'of  that  term,  and  also,  incidentally, 
the  distinction  between  evidential  and  nonevidential  presump- 
tions. 

This  discussion  is  not  concerned  with  so-called  presump- 
tions of  fact,  which,  as  has  been  seen,57  are  nothing  but  in- 
ferences from  circumstantial  evidence.  It  is  quite  obvious 
that  these  come  into  conflict  in  any  case  wherein  that  sort  of 
evidence  is  adduced  by  both  parties  with  reference  to  the  same 
ultimate  fact,58  and,  in  this  event,  that  inference  will  naturally 
be  indulged  which  has  the  greatest  degree  of  probability  to- 
sustain  it.  This,  however,  is  a  case  of  conflicting  inferences, 
not  conflicting  presumptions,  and  the  matter  is  therefore  be- 
yond the  scope  of  the  present  inquiry. 

soThayer,  Prel.  Treat.  Ev.  341,  343;  Wigmore,  Greenl.  Ev.  p.  108. 

ST  Section  12,  supra. 

es  Where,  for  instance,  a  sheriff's  sale  is  attacked  for  want  of  due 
advertisement,  none  appearing  in  the  officer's  return,  the  argument 
that  everything  that  was  done  appears  in  the  return  because  the  officer 
is  required  by  law  to  return  the  writ  with  his  doings  thereon  comes 
into  conflict  with  the  argument  that  the  officer  did  not  sell  before 
advertising  because  the  statute  makes  it  his  duty  to  advertise  before- 
selling.  Foster  v.  Berry,  14  R.  I.  601. 


§  20  PRESUMPTIONS.  71 

§  19.    Presumptions  relating  to  burden  of  convincing  jury. 

Nonevidential  presumptions,  as  has  been  seen,59  are  always 
convertible  into  rules  of  positive  law.  Some  of  these  relate  to 
the  burden  of  proof;  others  do  not.  Conclusive  presumptions, 
for  instance,  are  rules  of  substantive  law  declaring  the  legal 
insignificance  or  immateriality  of  the  nonexistence  of  the  fact 
assumed.  They  do  not  say  that  the  party  against  whom  they 
operate  must  bear  the  burden  of  establishing  the  nonexistence 
of  that  fact.  On  the  contrary,  they  say  that  the  nonexistence 
of  that  fact  has  no  legal  bearing  on  the  case,  and  that  the  rights 
of  the  parties  are  the  same  whether  or  not  the  fact  exists.60 
Between  these  presumptions,  therefore,  there  is  no  semblance 
of  conflict,  and  they  may  be  dismissed  from  notice. 

Some  nonevidential  presumptions,  however,  may  be  said  to 
affect  the  burden  of  proof,  and,  unlike  evidential  presump- 
tions, they  may  affect  it  in  that  sense  of  the  term  which  places 
on  a  party  the  necessity  of  convincing  the  jury  of  the  exist- 
ence of  the  facts  essential  to  his  case.  They  do  this,  how- 
ever, not  as  presumptions,  but  by  virtue  of  the  fact  that,  in 
reality,  they  are  rules  of  positive  law  relating  to  the  matter 
in  question.61  Consequently  there  is  no  more  conflict  between 
these  presumptions,  in  a  given  case,  than  there  is  in  the  rules 
of  positive  law  of  which  they  are  the  indirect  expressions. 

§  20.    Presumptions  relating  to  burden  of  adducing  evidence. 

A  prima  facie  case  casting  on  the  opposing  party  the  burden 
of  adducing  evidence  in  rebuttal  may  consist  in  either  evi- 
dential or  nonevidential  presumptions. 

Evidential  presumptions  do  not  come  into  conflict.  Their 
nature  precludes  it.  The  introduction  of  evidence  which 

58  Section  17,  supra, 
eo  Section  13 (a),  supra. 
Bisection  17 (b),  supra. 


72  LAW   OF  EVIDENCE.  §  20 

tends  to  disprove  the  assumed  fact  dispels  the  presumption, 
and  the  question  of  the  existence  of  the  fact  becomes  a  matter 
of  inference  for  the  jury  upon  all  the  evidence.62  If  the  plain- 
tiff adduces  evidentiary  facts  which  give  rise  to  a  presump- 
tion of  the  ultimate  fact,  and  the  defendant  does  not  dispute 
the  evidentiary  facts,  the  burden  is  on  the  defendant  to  ad- 
duce evidence  tending  to  establish  additional  facts,  and  there- 
by render  the  presumption  inapplicable  and  of  no  force.  These 
additional  facts,  it  is  to  be  observed,  may  be  such  as  not  only 
to  dispel  the  presumption  in  favor  of  plaintiff,  but  also  to  give 
rise  to  a  new  and  different  presumption  in  favor  of  defend- 
ant. In  this  event  the  burden  of  adducing  evidence  is  shifted 
to  plaintiff,  and  he  must  adduce  evidence  that  tends  to  defeat 
this  new  presumption,  the  same  as  defendant  was  required  to 
do  in  the  first  instance;  and  if  the  plaintiff  adduces  evidence 
of  additional  facts,  the  presumption  in  favor  of  defendant  is 
dispelled,  the  same  as  was  the  original  presumption  in  favor 
of  plaintiff.  In  such  cases  as  these  the  presumptions  do  not 
come  into  conflict,  since  the  additional  evidence  which  gives 
rise  to  the  later  presumption  dispels  the  earlier.  It  is  a  case 
of  "successive"  presumptions,  and  not  a  case  of  "conflicting" 
presumptions.63  What  is  meant,  therefore,  by  conflicting  pre- 
sumptions, so  far  as  it  refers  to  evidential  presumptions,  is 
conflicting  inferences. 

The  same  is  true  of  nonevidential  presumptions  in  their  ef- 
fect as  creating  a  prima  facie  case  casting  on  the  adverse  party 
the  necessity  of  going  forward  with  the  trial  by  adducing  evi- 
dence to  the  contrary.  When  evidence  in  rebuttal  is  given, 
the  presumption  has  served  its  purpose  and  disappears,  and 
the  existence  of  the  fact  formerly  assumed  becomes  a  ques- 
tion of  inference  for  the  jury  upon  all  the  evidence.6* 

«2  Section  16  (c),  supra.  f 

eswigmore,  Greenl.  Ev.  §  14y(3). 


g  21  PRESUMPTIONS.  73 

§  21.  Conflict  between  presumptions  relating  to  burden  of 
convincing  jury  and  those  relating  to  burden  of  ad- 
ducing evidence. 

In  some  cases  a  nonevidential  presumption,  operating  as  a 
rule  of  positive  law,  fixes  the  burden  of  establishing  or  con- 
vincing on  one  party,  and  another  presumption,  whether  evi- 
dential or  nonevidential,  creates  a  prima  facie  case  in  his  favor 
as  to  some  essential  fact  negatived  by  the  first  presumption. 
These  presumptions  do  not,  in  truth,  come  into  conflict,  how- 
ever, since  their  operation  is  different.  The  first  places  on  the 
party  the  burden,  not  of  going  forward  with  the  trial,  but  of 
convincing  the  jury  of  the  existence  of  the  facts  essential  to 
his  case.  The  second  does  not  affect  this  burden.  It  simply 
relieves  him  of  the  necessity  of  adducing  evidence  of  the  fact 
which  it  assumes  to  exist,  and  casts  on  the  other  party  the 
burden  of  adducing  evidence  of  its  nonexistence.  "When  this 
rebutting  evidence  is  adduced,  the  second  presumption  disap- 
pears, and  the  existence  of  the  fact  in  question  is  to  be  de- 
termined by  the  jury  upon  all  the  evidence  introduced  in 
the  trial.  The  first  presumption  continues,  however,  oper- 
ating still  as  a  rule  of  positive  law  which  requires  him  to  con- 
vince the  jury  of  the  facts  essential  to  his  case.  In  such  cases 
as  these,  therefore,  the  two  presumptions  operate  without  fric- 
tion, each  serving  a  different  purpose.  Thus,  in  a  trial  for 
crime,  the  presumption  of  innocence,  operating  as  a  rule  of 
positive  law,  requires  the  state  to  establish  guilt,  and  inci- 
dentally the  state -is  bound  to  begin  the  trial  by  adducing  evi- 
dence of  guilt.  When  an  act  otherwise  criminal  is  shown,  a 
presumption  of  sanity,  operating  as  a  rule  of  trial  procedure, 
requires  the  accused  to  go  forward  by  adducing  evidence  of 
insanity,  if  he  relies  on  it  as  a  defense.  When  he  does  so, 

e*  Section  17  (b),  supra. 


74  LAW   OP   EVIDENCE.  §   21 

the  presumption  of  sanity,  having  served  its  purpose,  disap- 
pears, and  all  the  evidence  in  the  case  is  to  be  considered  by 
the  jury  in  determining  the  fact  of  sanity.  If  the  jury  enter- 
tain a  reasonable  doubt  of  its  existence,  they  must  acquit,  be- 
cause it  is  an  essential  element  of  the  state's  case,  and  the 
burden  of  establishing  guilt  as  fixed  by  the  presumption  of 
innocence  rests  'on  the  state  until  the  verdict  is  found.  So,  in 
the  trial  of  a  public  officer  for  embezzlement,  the  presumption 
of  innocence  requires  the  state  to  convince  the  jury  of  the 
accused's  guilt.  When  public  accounts  showing  a  shortage 
have  been  introduced,  the  presumption  of  their  correctness 
makes  a  prima  facie  case  in  favor  of  the  state,  and  imposes  on 
the  accused  the  burden  of  adducing  evidence  of  their  incor- 
rectness. If  he  adduces  such  evidence,  the  presumption  dis- 
appears, and  the  correctness  of  the  accounts  is  to  be  deter- 
mined by  the  jury  upon  all  the  evidence,  without  regard  to 
any  presumption.  The  burden  of  convincing  the  jury  of  guilt 
as  fixed  by  the  presumption  of  innocence  still  rests  on  the  state, 
however,  as  it  does  from  beginning  to  end.65  Again,  in  prose- 
cutions for  certain  crimes,  such  as  seduction,  and  sometimes 
abduction  and  defamation,  the  chastity  of  the  prosecutrix  is 
an  essential  element  of  the  state's  case.  The  presumption  of 
innocence,  'operating  in  favor  of  the  accused,  therefore  requires 
the  state  to  convince  the  jury  of  the  existence  of  this  fact. 
By  the  better  opinion,  however,  a  presumption  of  chastity 
operates  to  make  a  prima  facie  case  on  this  point  in  favor  of 
the  state,  thus  relieving  it,  for  the  time  being,  of  the  neces- 
sity of  adducing  evidence  'of  chastity,  and  requiring  the  ac- 
cused to  adduce  evidence  of  unchastity.66  When  this  evidence 

es  Hemingway  v.  State,  68  Miss.  371. 

se  Slocum  v.  People,  90  111.  274  (abduction) ;  State  v.  Wells,  48  Iowa, 
671  (seduction).  Contra,  McArthur  v.  State,  59  Ark.  431  (slander); 
State  v.  McDaniel,  84  N.  C.  803  (slander);  West  v.  State,  I  Wis.  209 
(seduction). 


PARTICULAR  INSTANCES.  75. 

in  rebuttal  is  adduced,  the  presumption  disappears,  and  the 
question  of  chastity  is  to  be  determined  by  the  jury  upon  all  the 
evidence,  without  regard  to  the  presumption.  The  presump- 
tion of  innocence  still  operates,  however,  to  require  the  state 
to  convince  the  jury  of  all  the  facts  essential  to  the  crime,  in- 
cluding the  fact  of  chastity. 

Of  the  two  presumptions  thus  operating  in  each  of  the  sev- 
eral illustrations  just  given,  one  always  fixes  the  burden  of 
convincing  the  jury  of  the  facts  essential  to  a  conviction.  The 
other  fixes  the  necessity  of  going  forward  with  the  trial  by 
adducing  evidence  to  dispel  a  prima  facie  case.  One  does  not, 
the  other  does,  make  a  prima  facie  case.  One  does  not,  the  other 
does,  disappear  when  evidence  to  the  contrary  is  introduced. 
They  therefore  serve  different  purposes,  and  do  not  come  into 
conflict. 

ART.  III.     PARTICULAR   INSTANCES. 

A.  Preliminary  Considerations,  §  22. 

B.  Authority  and  Regularity,  §  23. 

Appointment,  qualification,  and  authority,  §  24. 
Course  of  business,  §  25. 

(a)  Public  business — Delivery  of  letters  and  telegrams. 

(b)  Private  business. 

Performance  and  regularity  of  official  acts,  §  26. 

(a)  Performance. 

(b)  Regularity. 

(c)  Nature  and  qualification  of  presumption. 
Judicial  proceedings,  §  27. 

(a)  Jurisdiction. 

(b)  Regularity  of  subsequent  proceedings. 
Corporations,  §  28. 

(a)  Grant  and  acceptance  of  charter — Organization — Consolida- 

tion. 

(b)  Officers — Appointment — Regularity  of  acts. 

(c)  Powers. 
Marriage,  §  29. 

Contracts  and  conveyances,  §  30 
(a)  Consideration. 


76  LAW  OF  EVIDENCE. 

B.  Authority  and  Regularity — Cont'd. 

(b)  Execution. 

(c)  Delivery. 

(d)  Acceptance. 

(e)  Negotiable  instruments. 

(f)  Alteration  of  instrument. 

C.  Capacity  of  Infants. 

Crimes,  §  31. 
Torts,  §  32. 
Contracts,  §  33. 

D.  Continuity. 

General  Rules,  §  34. 
Illustrations,  §  35. 

E.  Conversion,  §  36. 

F.  Fabrication,    Spoliation,    Suppression,    and    Nonproduction    of    Evfr 

dence. 

General  considerations,  §  37. 
Real  or  demonstrative  evidence,  §  38. 
Documents,  §  39. 
Testimony,  §  40. 
Qualifications  of  rule,  §  41. 
Nature  and  effect  of  presumption,  §  42. 

(a)  Effect  as  to  secondary  evidence. 

(b)  Attempt  to  fabricate,  spoliate,  or  suppress  evidence. 

G.  Fraud,  Duress,  and  Undue  Influence. 

Fraud,  §  43. 

Duress,  §  44. 

Undue  influence,  §  45. 

(a)  Contracts  and  conveyances. 

(b)  Wills. 

H.  Husband  and  Wife. 

Marital  coercion,  §  46. 

(a)  Crimes. 

(b)  Torts. 

(c)  Modern  statutes. 
Agency,  §  47. 

(a)  Care  of  absentee's  property. 

(b)  Family  necessaries. 
I.  Identity,  §  48. 

J.  Innocence,  Intent,  and  Malice. 
Criminal  cases,  §  49. 

(a)  Innocence. 

(b)  Intent  and  malice. 

(c)  Justification  and  excuse. 


PARTICULAR  INSTANCES.  77 

J.  Innocence,  Intent,  and  Malice — Cont'd. 
Civil  cases,  §  50. 

(a)  Innocence. 

(b)  Intent. 

(c)  Malice. 

K.  Knowledge  of  Contents  of  Instrument. 

Contracts  and  conveyances,  §  51. 

Wills,  §  52. 
L.  Law. 

Knowledge  of  law,  §  53. 

(a)  Crimes. 

(b)  Torts. 

(c)  Contracts. 

Terms  of  foreign  law,  §  54. 

(a)  Common  law. 

(b)  Statutory  law. 
M.  Legality,  §  55. 

Agency,  §  56. 
Contracts,  §  57. 
Marriage,  §  58. 

(a)  Legality  in  general. 

(b)  Common-law  marriage — Cohabitation  and  repute 
N.  Legitimacy. 

General  rules,  §  59. 
Rebuttal  of  presumption,  §  60. 
O.  Life,  Death,  and  Survivorship. 
Continuance  of  life,  §  61. 
Death  of  absentee,  §  62. 

(a)  Residence  of  absentee. 

(b)  Lack  of  tidings. 

(c)  Time  of  absence. 

(d)  Time  of  death. 

(e)  Rebuttal  of  presumption. 

(f)  Effect  of  presumption. 
Survivorship,  §-63. 

Cause  of  death,  §  64. 
P.  Negligence,  §  65. 

Res  ipsa  loquitur,  §  66. 

(a)  Electric  wires. 

(b)  Falling  objects. 

(c)  Explosions. 

(d)  Railroad  accidents. 

(e)  Master  and  servant. 

(f)  Rebuttal  of  presumption. 


78  LAW  OF  EVIDENCE. 

P.  Negligence — Cont'd. 

Contributory  negligence,  §  67. 
Bailments,  §  68. 

(a)  Bailees  in  general. 

(b)  Innkeepers. 

(c)  Telegraph  companies. 

(d)  Carriers  of  goods. 
Carriers  of  passengers,  §  69. 

(a)   Res  ipsa  loquitur. 

'Q.  Parent  and  Child. 

Issue,  §  70. 

Emancipation,  §  71. 

Advancements,  §  72. 

Services  and  support,  §  73. 
R.  Payment,  §  74. 

Lapse  of  time,  §  75. 

(a)  General  rule. 

(b)  Period  of  delay. 

(c)  Rebuttal. 

Payment  by  negotiable  instrument,  §  76. 

(a)  Instrument  of  debtor. 

(b)  Instrument  of  third  person. 

(c)  Accounting  and  settlement. 
Receipt,  §  77. 

Possession  of  obligation,  §  78. 
Cancellation  of  obligation,  §  79. 
Installments,  §  80. 
Application  of  payments,  §  81. 
Time  of  payment,  §  82. 
Payment  or  loan,  §  83. 
Payment  or  security,  §  84. 
S.  Sanity,  §  85. 

Criminal  cases,  §  86. 
Civil  cases,  §  87. 

(a)  Contracts  and  conveyances. 

(b)  Wills. 
Continuance  of  insanity,  §  88. 

T.  Use  and  Possession. 

Presumption  of  ownership  from  mere  possession,  §  89. 

(a)  Personal  property. 

(b)  Real  property. 

Presumption   of  lost  grant   from   circumstantial   evidence    §   90. 


x   02  PARTICULAR  INSTANCES.  79 

•o 

T.  Use  and  Possession — Cont'd. 

(a)  General  rules. 

(b)  Nature  of  presumption. 

Presumption  of  lost  grant  arising  from  adverse  user  or  possession — 
Prescription,  §  91. 

(a)  Preliminary  considerations. 

(b)  Presumption  and  its  extent. 

(c)  Nature  of  presumption. 

(d)  Sufficiency  of  user  or  possession. 
Possession  as  evidence  of  crime,  §  92. 

(a)  Nature  of  presumption. 

(b)  Illustrations. 

(c)  Rebuttal. 

(d)  Sufficiency  of  possession. 

(e)  Possession  as  crime  per  se. 

A.  PRELIMINARY    CONSIDERATIONS. 

§  22.  As  has  been  noticed  at  various  points  in  the  preced- 
ing discussion,  much  confusion  exists  in  the  terminology  of 
the  law  of  burden  of  proof  and  presumptions.1  Many  cases 
substantially  in  accord  will  therefore  be  found  to  be  in  ap- 
parent conflict.  This  consideration  leads  to  the  cautionary 
observation  that  in  the  following  pages  an  attempt  has  been 
made  to  cite  the  cases  according  to  the  effect  which  they  give 
to  the  various  conceptions  under  discussion,  rather  than  ac- 
cording to  the  terms  which  they  use  to  denote  those  concep- 
tions. In  other  words,  where  the  two  are  inconsistent,  the 
cases  are  cited  according  to  the  decision,  rather  than  accord- 
ing to  the  terms  used  in  the  discussion  leading  up  to  the  de- 
cision. 

i  Distinction  between  meanings  of  burden  of  proof,  see  §  2,  supra. 
Distinction  between  case  for  jury  and  prima  facie  case,  see  §§  3,  4, 
supra.  Distinction  between  presumptions  of  fact  and  of  law,  see  §§ 
12-14,  supra.  Distinction  between  disputable  and  conclusive  presump- 
tions, see  §  13,  supra.  Distinction  between  rebutting  presumption  and 
disproving  facts  on  which  it  is  founded,  see  §  13 (a),  supra.  Improper 
application  of  term  "presumption  of  fact"  to  disputable  presumptions 
as  a  class,  see  §  12,  supra.  Improper  application  of  term  "presumption 
of  fact"  to  presumptions  of  law,  see  §  12,  supra. 


80  LAW  OP  EVIDENCE.  §   24 

B.  AUTHORITY   AND   REGULARITY. 

§  23.  It  is  a  maxim  of  the  law  that  all  things  are  presumed 
to  have  been  rightly  and  regularly  done;2  and  this  presump- 
tion is  extended  in  some  instances  so  as  to  assume  the  per- 
formance of  official  duties,  and  it  is  applied  to  acts  of  indi- 
viduals, as  well  as  to  the  duties  of  officers.  Want  of  author- 
ity and  irregularity  are  to  be  distinguished  in  this  connection 
from  illegality  and  fraud,  presumptions  as  to  which  are  else- 
where considered.8 

§  24.    Appointment,  qualification,  and  authority. 

If  a  person  acts  openly  in  an  official  or  quasi  official  capacity; 
the  presumption  is  that  he  has  been  duly  appointed,  so  that  one 
who  impeaches  his  acts  for  want  of  authority  has  the  burden 
of  adducing  evidence  of  his  lack  of  power.4  The  presumption 

aThayer,  Prel.  Treat.  Ev.  335;  U.  S.  Bank  v.  Dandridge,  12  Wheat. 
(U.  S.)  64,  70.  This  presumption  is  expressed  in  the  maxim,  Omnio 
praesumuntur  rite  et  solemniter  esse  acta  donee  probetur  in  contrafium. 

3  See  §§  55-58,  infra,  as  to  legality,  and  §  43,  infra,  as  to  fraud. 

*  Marshall  v.  Lamb,  5  Q.  B.  115;  Plumer  v.  Brisco,  11  Q.  B.  46; 
Ronkendorff  v.  Taylor's  Lessee,  4  Pet.  (U.  S.)  349;  Shelby ville  Trustees 
v.  S.  &  E.  Turnpike  Co.,  1  Mete.  (Ky.)  54;  New  Portland  v.  Kingfield, 
55  Me.  172;  Kobs  v.  Minneapolis,  22  Minn.  159;  Dolph  v.  Barney,  5  Or. 
191. 

Administrator.    Battles  v.  Holley,  6  Me.  145. 

Attorneys  at  law,  see  pages  83,  99,  infra. 

Commissioner  to  take  affidavits.  Rex  v.  Howard,  1  Moody  &  R.  187; 
Reg.  v.  Newton,  1  Car.  &  K.  469. 

Constable.  Butler  v.  Ford,  1  Cromp.  &  M.  662;  Webber  v.  Davis,  5 
Allen  (Mass.)  393. 

Corporate  officers,  see  §  28 (b),  infra. 

Justices  of  the  peace.  Bullen  v.  Arnold,  31  Me.  583;  Forsaith  v. 
Clark,  21  N.  H.  409;  Wilcox  v.  Smith,  5  Wend.  (N.  Y.)  231,  21  A.  D. 
213,  216. 

Tax  collector.  Jacob  v.  U.  S.,  1  Brock.  520,  Fed.  Cas.  No.  7,157; 
Johnston  v.  Wilson,  2  N.  H.  202,  9  A.  D.  50. 

This  presumption  is  applied  to  all  sorts  of  officers, — municipal,  state, 


§  24  AUTHORITY   AND   REGULARITY.  81 

obtains  in  criminal  proceedings,8  as  well  as  in  civil  cases,  as, 
for  instance,  in  a  trial  for  assaulting  a  police  officer, — the  offi- 
cer's appointment  is  evidenced,  prima  facie,  by  his  having  acted 
in  that  capacity.' 

The  presumption  arises  even  where  the  title  of  the  officer 
is  directly  put  in  issue  in  an  action  wherein  he  is  a  party.7  In 
quo  warranto  proceedings,  however,  the  burden  of  proof  is  not 

and  national, — though  there  would  seem  to  be  no  need  of  applying  it 
to  public  officers  of  whose  appointment  the  court  is  required  to  take 
judicial  notice.  See  §§  97,  98,  infra,  as  to  judicial  notice. 

To  aid  in  founding  the  presumption,  it  may  be  shown  that  the  per- 
son in  question  exercised  the  office,  not  only  before,  but  also  for  a 
reasonable  time  after,  he  performed  the  official  act  in  question.  Doe 
d.  Hopley  v.  Young,  8  Q.  B.  63. 

This  question  of  the  necessity  of  offering  evidence  of  the  appoint- 
ment of  a  de  jure  officer  is  to  be  distinguished  from  the  question 
whether  the  acts  of  a  de  facto  officer  are  valid.  The  latter  question  is 
one  of  substantive  law,  with  which  a  work  on  evidence  is  not  con- 
cerned. 

The  qualification  of  the  following  officers  may  be  presumed: 

Administrator.  Tucker  v.  Harris,  13  Ga.  1,  58  A.  D.  488;  Battles 
v.  Holley,  6  Me.  145. 

Alderman.     Rex  v.  Hawkins,  10  East,  211. 

Judge.  Price  v.  Springfield  R.  E.  Ass'n,  101  Mo.  107,  20  A.  S.  R. 
595. 

Marshal.    Killpatrick  v.  Frost,  2  Grant  Cas.  (Pa.)  168. 

Competency  of  an  officer  to  perform  his  duties  may  be  presumed, 
in  the  absence  of  evidence  to  the  contrary.  State  v.  Main,  69  Conn. 
123,  61  A.  S.  R.  30;  Ashe  v.  Lanham,  5  Ind.  434. 

The  presumption  is  that  a  person  acting  as  an  officer  has  taken  the 
proper  oath.  Nelson  v.  People,  23  N.  Y.  293. 

Foreign  officers.  These  presumptions  apply  to  foreign  officers.  Sum- 
mer v.  Mitchell,  29  Fla.  179,  30  A.  S.  R.  106;  Conolly  v.  Riley,  25  Md. 
402;  Forsaith  v.  Clark,  21  N.  H.  409;  Den  d.  Saltar  v.  Applegate,  23  N. 
J.  Law,  115;  Spaulding  v.  Vincent,  24  Vt.  501;  Ritchie  v.  Carpenter,  2 
Wash.  512,  26  A.  S.  R.  877. 

o  Rex  v.  Verelst,  3  Camp.  432;   State  v.  Findley,  101  Mo.  217. 

•  Com.  v.  Kane,  108  Mass.  423,  11  A.  R.  373;  Com.  v.  McCue,  16  Gray 
(Mass.)  226;  State  v.  Roberts,  52  N.  H.  492.  And  see  Rex  v.  Gordon, 
1  Leach,  515. 

Hammon,  Ev. — 6. 


82  LAW  OF  EVIDENCE.  §  24 

on  the  relator,  nor  on  the  state,  but  on  the  respondent.  Un- 
less, therefore,  he  can  prove  title  to  the  office,  he  will  be 
ousted.8  If,  however,  the  relator  asserts  title  to  the  office  in 
himself,  the  burden  of  proof  rests  on  him  to  make  his  claim 
good,  if  he  would  obtain  a  judgment  for  possession  of  the 
office.9 . 

fCannell  v.  Curtis,  2  Bing.  N.  C.  228;  Bunbury  v.  Matthews,  1  Car. 
&  K.  380;  Berryman  v.  Wise,  4  Term  R.  366;  Hatchings  v.  Van  Bok- 
kelen,  34  Me.  126. 

One  who  has  been  duly  elected  and  inducted  into  an  office  need  not 
show  that  he  is  eligible,  where  his  right  to  the  office  is  subsequently 
disputed  because  of  his  failure  to  file  an  additional  bond.  "Knox  Coun- 
ty Com'rs  v.  Johnson,  124  Ind.  145,  19  A.  S.  R.  88. 

s  Rex  v.  Leigh,  4  Burrow,  2143;  People  v.  Ridgley,  21  111.  65,  67; 
Tillman  v.  Otter,  93  Ky.  600,  29  L.  R.  A.  110,  111  (semble) ;  People 
v.  Mayworm,  5  Mich.  146;  People  v.  Thacher,  55  N.  Y.  525,  14  A.  R. 
312;  State  v.  Norton,  46  Wis.  332,  342;  People  v.  Stratton,  33  Colo.  88. 

It  has  been  held  that  this  rule  does  not  apply  to  corporate  officers, 
so  that  the  burden  of  proof  does  not  rest  on  the  respondent.  State 
v.  Kupferle,  44  Mo.  154,  100  A.  D.  265;  State  v.  Hunton,  28  Vt.  594. 
Contra,  State  v.  Harris,  3  Ark.  570,  36  A.  D.  460. 

The  respondent  makes  a  prima  facie  case  of  title  by  showing  a  cer- 
tificate of  election;  but  if  the  relator  shows  the  returns  to  be  false, 
the  certificate  is  of  no  effect,  and  the  respondent  must  prove  his  title 
otherwise.  People  v.  Thacher,  55  N.  Y.  525,  14  A.  R.  312;  People  v. 
Lacoste,  37  N.  Y.  192;  State  v.  Norton,  46  Wis.  332,  342.  If  the  re- 
spondent shows  an  election  by  persons  acting  as  electors  under  color 
of  right,  he  makes  a  prima  facie  case,  and  the  burden  of  showing  that 
the  electors  were  not  qualified  rests  on  the  state.  State  v.  Harris,  3 
Ark.  570,  36  A.  D.  460.  Presumption  of  correctness  of  election  re- 
turns, see  page  96,  infra. 

»  Miller  v.  English,  21  N.  J.  Law,  317;  People  v.  Thacher,  55  N.  Y. 
525,  14  A.  R.  312;  People  v.  Lacoste,  37  N.  Y.  192;  State  v.  Norton,  46 
Wis.  332,  344.  And  see  Tillman  v.  Otter,  93  Ky.  600,  29  L.  R.  A.  110. 

The  same  is  true  of  a  relator  in  mandamus  proceedings  who  asserts 
title  to  an  office.  State  v.  Williams,  99  Mo.  291;  People  v.  Nostrand, 
46  N.  Y.  375. 

The  failure  of  the  relator  to  discharge  the  burden  of  proof  thus  rest- 
Ing  on  him  has  no  other  effect  than  to  defeat  an  affirmative  judgment 
in  his  favor.  It  does  not  prevent  a  judgment  of  ouster  against  the 


§   24  AUTHORITY   AND   REGULARITY.  83 

Ordinarily,  a  party  who  seeks  to  charge  another  as  prin- 
cipal for  the  acts  of  an  agent  has  the  burden  of  proving  the 
agency.10  This  rule  does  not  apply  after  long  possession  un- 
der a  deed  executed  in  the  name  of  the  titular  owner  by  an 
agent.  It  is  then  presumed  that  the  agent  had  authority  to 
make  the  deed.11  Nor  does  the  rule  apply  to  an  attorney  at 
law.  It  is  presumed  that  he  has  authority  to  appear  for  the 
party  in  whose  name  he  enters  an  appearance  or  conducts  the 
action  or  defense.12  This  presumption  is  rebuttable.18 

As  against  the  person  who  has  assumed  to  act  as  agent,  a 
presumption  may  arise  in  favor  of  third  persons  that  he  had 
authority  to  do  the  acts  which  he  has  done  in  that  capacity;14 

respondent,  if  the  latter  fails  to  show  title  to  the  office.  Clark  v.  Peo- 
ple, 15  111.  213;  People  v.  Thacher,  55  N.  Y.  525,  14  A.  R.  312;  People 
v.  Phillips,  1  Denio  (N.  Y.)  388;  State  v.  Norton,  46  Wis.  332,  344. 

10  Pole  v.  Leask,  33  Law  J.  Ch.  155;   Sellers  v.  Commercial  F.  Ins. 
Co.,  105  Ala.  282;  Harris  v.  San  Diego  Flume  Co.,  87  Cal.  526;   Davies 
v.  Eastern  Steamboat  Co.,  94  Me.  379,  53  L.  R.  A.  239;   Whitaker  v. 
Ballard,  178  Mass.  584;  B.  &  O.  E.  Relief  Ass'n  v.  Post,  122  Pa.  579,  9 
A.  S.  R.  147;  1  Clark  &  S.  Agency,  163. 

11  Jarboe  v.  McAtee's  Heirs,  7  B.   Mon.    (Ky.)    279,  281;    Buhols  v. 
Boudousquie,  6   Mart.   N.    S.    (La.)    153;    Stockbridge   v.   West  Stock- 
bridge,  14  Mass.  257   (semble);   Thompson  v.  Carr,  5  N.  H.  510.     See 
College  of  St.  Mary  Magdalen  v.  Attorney  General,  3  Jur.  N.  S.  (pt.  1) 
675. 

"Plait's  Heirs  v.  McCullough's  Heirs,  1  McLean,  69,  Fed.  Gas.  No. 
11,113;  Tally  v.  Reynolds,  1  Ark.  99,  31  A.  D.  737;  Williams  v.  Un- 
compahgre  Canal  Co.,  13  Colo.  469;  Postal  Tel.  Cable  Co.  v.  L.,  N.  O. 
ft  T.  R.  Co.,  43  La.  Ann.  522;  Penobscot  Boom  Corp.  v.  Lamson,  16  Me. 
224,  33  A.  D.  656;  Finneran  v.  Leonard,  7  Allen  (Mass.)  54,  83  A.  D. 
665;  Vorce  v.  Page,  28  Neb.  294;  Holder  v.  State,  35  Tex.  Cr.  App.  19. 
And  see  Beem  v.  Kimberly,  72  Wis.  343;  2  Clark  &  S.  Agency,  1380. 
See,  also,  page  99,  infra. 

is  Tally  v.  Reynolds,  1  Ark.  99,  31  A.  D.  737;  Harshey  v.  Blackmarr, 
20  Iowa,  161,  89  A.  D.  520;  Newcomb  v.  Dewey,  27  Iowa,  381;  McAlex- 
ander  v.  Wright,  3  T.  B.  Mon.  (Ky.)  189,  16  A.  D.  93;  Marvel  v. 
Manouvrier,  14  La.  Ann.  3,  74  A.  D.  424;  Boro  v.  Harris,  13  Lea 
(Tenn.)  36;  2  Clark  &  S.  Agency,  1383. 

"  Montgomery  v.  Pac.  Coast  Land  Bureau,  94  Cal.  284,  28  A.  S.  R. 
122. 


84  LAW  OF  EVIDENCE.  §  25a 

and,  agency  being  established,  the  agent  is  presumed  to  have 
the  authority  ordinarily  granted  to  agents  of  his  class,15  and 
the  agency  is  presumed  to  be  general,  not  limited.16 

§  25.    Course  of  business. 

The  performance  of  particular  acts  may  be  presumed  from 
the  known  course  of  business,  public  or  private. 

(a)  Public  business — Delivery  of  letters  and  telegrams. 
The  important  illustration  of  this  in  public  affairs  is  the  pre- 
sumption that  a  letter,  properly  addressed,  stamped,  and 
mailed,  was  duly  delivered  to  the  addressee  in  due  course  of 
mail.17  To  raise  the  presumption,  it  must  appear  that  the  let- 
is  Austrian  v.  Springer,  94  Mich.  343,  34  A.  S.  R.  350;  Thomas  v.  City 
Nat.  Bank,  40  Neb.  501,  24  L.  R.  A.  263;  Campbell  v.  Mfrs.  Nat.  Bank, 
67  N.  J.  Law,  301,  91  A.  S.  R.  438;  Nichols  v.  Or.  S.  L.  R.  Co.,  24  Utah, 
83,  91  A.  S.  R.  778. 

is  Austrian  v.  Springer,  94  Mich.  343,  34  A.  S.  R.  350. 

iTRosenthal  v.  Walker,  111  U.  S.  185;  De  Jarnette  v.  McDaniel,  93 
Ala.  215;  Breed  v.  First  Nat.  Bank,  6  Colo.  235;  Garland  v.  Gaines, 
73  Conn.  662,  84  A.  S.  R.  182;  Augusta  v.  Vienna,  21  Me.  298;  Chase 
v.  Surry,  88  Me.  468,  475;  Huntley  v.  Whittier,  105  Mass.  391,  7  A.  R. 
536;  McDowell  v.  Aetna  Ins.  Co.,  164  Mass.  444,  446;  Briggs  v.  Hervey, 
130  Mass.  186;  Marston  v.  Bigelow,  150  Mass.  45,  5  L.  R.  A.  43;  Ore- 
gon S.  S.  Co.  v.  Otis,  100  N.  Y.  446,  53  A.  R.  221;  Folsom  v.  Cook, 
115  Pa.  539;  Callan  v.  Gaylord,  3  Watts  (Pa.)  321;  McDermott  v. 
Jackson,  97  Wis.  64. 

Letter  inclosing  money.  Olney  v.  Blosier,  12  N.  Y.  State  Rep.  211; 
Russell  v.  Buckley,  4  R.  I.  525,  70  A.  D.  167. 

Notices  required  by  insurance  policy.  Pitts  v.  Hartford  L.  &  A.  Ins. 
Co.,  66  Conn.  376,  50  A.  S.  R.  96;  Home  Ins.  Co.  v.  Marple,  1  Ind.  App. 
411;  Pennypacker  v.  Capital  Ins.  Co.,  80  Iowa,  56,  20  A.  S.  R.  395; 
Dade  v.  Aetna  Ins.  Co.,  54  Minn.  336;  Plath  v.  Minn.  F.  M.  F.  Ins. 
Ass'n,"23  Minn.  479,  23  A.  R.  697;  Nat.  Masonic  Ace.  Ass'n  v.  Burr,  57 
Neb.  437. 

Notices  of  nonpayment  and  protest.  Stocken  v.  Collin,  7  Mees.  &  W. 
515;  Saunderson  v.  Judge,  2  H.  Bl.  509;  Bussard  v.  'Levering,  6  Wheat. 
(U.  S.)  102;  Loud  v.  Merrill,  45  Me.  516;  Shoemaker  v.  Mechanics' 
Bank,  59  Pa.  79,  98  A.  D.  315;  Jensen  v.  McCorkell,  154  Pa.  323,  35  A. 
S.  R.  843.  See  note  23,  infra. 


§  25a  AUTHORITY   AND   REGULARITY,  85 

ter  was  properly  addressed,18  that  the  postage  was  prepaid,19 
and  that  the  letter  was  duly  mailed.20    The  presumption  is 

Notice  of  dissolution  of  partnership.  Young  v.  Clapp,  147  111.  176; 
Eckerly  v.  Alcorn,  62  Miss.  228;  Austin  v.  Holland,  69  N.  Y.  571,  25 
A.  R.  246. 

Notice  of  assignment  for  creditors.  Boorum  v.  Armstrong  (Tenn. 
Ch.  App.)  37  S.  W.  1095. 

Notice  of  corporate  meeting.  Ashley  Wire  Co.  v.  111.  Steel  Co.,  164 
111.  149.  56  A.  S.  R.  187. 

So,  if  an  envelope  bears  directions  for  its  return  to  the  sender  in 
case  it  is  not  called  for  within  a  certain  time,  the  inference  is  that 
the  letter  would  be  returned  if  not  called  for.  Hedden  v.  Roberts,  134 
Mass.  38. 

In  some  cases,  statutory  notices  cannot  be  thus  proved.  Actual  no- 
tice is  necessary.  Inhabitants  of  Groton  v.  Inhabitants  of  Lancaster, 
16  Mass.  110. 

This  presumption  of  delivery  does  not  arise  from  the  mailing  of  a 
registered  letter,  at  least  where  the  absence  of  the  receipt  required 
of  the  addressee  by  the  post-office  regulations  is  not  accounted  for.t 
First  Nat.  Bank  v.  McManigle,  69  Pa.  156,  8  A.  R.  236. 

is  Henderson  v.  Carbondale  Coal  &  Coke  Co.,  140  U.  S.  25;  Goodwin 
v.  Provident  Sav.  L.  A.  Ass'n,  97  Iowa,  226,  59  A.  S.  R.  411;  Fleming 
&  A.  Co.  v.  Evans,  9  Kan.  App.  858;  Ward  v.  Hasbrouck,  44  App.  Div. 
(N.  Y.)  32;  Phelan  v.  N.  W.  L.  Ins.  Co.,  113  N.  Y.  147,  10  A.  S.  R. 
441. 

The  address  on  the  envelope  is  presumed  to  correspond  with  the 
address  in  the  letter,  in  the  absence  of  evidence  to  the  contrary.  Phe- 
lan v.  N.  W.  L.  Ins.  Co.,  113  N.  Y.  147,  10  A.  S.  R.  441. 

Even  though  the  addressee  has  changed  his  place  of  address  from 
that  to  which  the  letter  was  directed,  yet,  if  he  has  notified  the  post 
office  of  the  change,  the  presumption  is  that  he  has  received  the  let- 
ter. Marston  v.  Bigelow,  150  Mass.  45,  5  L.  R.  A.  43. 

i»  Bless  v.  Jenkins,  129  Mo.  647;  Ward  v.  Hasbrouck,  44  App.  Div. 
(N.  Y.)  32.  See  Morton  v.  Morton,  16  Colo.  358.  Contra,  Augusta  v. 
Vienna,  21  Me.  298  (statute). 

It  is  presumed,  in  favor  of  a  notice  of  protest,  that  the  notary,  in 
sending  it,  prepaid  the  postage.  Brooks  v.  Day,  11  Iowa,  46. 

20  Allen  v.  Blunt,  2  Woodb.  &  M.  121,  Fed.  Cas.  No.  217. 

Handing  the  letter  to  a  mail  agent  on  a  train  is  sufficient  mailing. 
Watson  v.  Richardson,  110  Iowa,  673. 

The  place  of  deposit  need  not  be  a  place  designated  as  such  by  the 
post-office  department.  If,  for  instance,  the  postman  is  accustomed  to 


86  LAW  OF  EVIDENCE.  §  25a 

that  the  letter  was  received  in  due  course  of  mail,  not  that  it 
was  received  within  any  particular  time  from  the  date  of 
mailing;21  and  the  presumption  does  not  arise  where  postal 
communication  was  at  the  time  interrupted,  as,  for  example, 
by  war.22  The  presumption  is  not  conclusive,  and  evidence  is 
therefore  admissible  to  rebut  it;  the  question  of  delivery  of 
the  letter  then  being  one  for  the  determination  of  the  jury 
upon  all  the  evidence,  regardless  of  any  presumption.23  If, 

take  letters  for  mailing  from  a  private  box,  and  the  owner  of  the  box 
deposited  there  a  properly  stamped  and  addressed  envelope,  it  may  be 
sufficient  to  raise  the  presumption.  Skilbeck  v.  Garbett,  7  Q.  B.  846, 
9  Jur.  939. 

A  presumption  that  a  letter  was  mailed  may  arise  from  usage  in 
a  particular  office  in  reference  to  mailing  letters,  although  there  is  no 
direct  evidence  of  the  actual  mailing  of  the  letter  in  question.  Law- 
rence Bank  v.  Raney  &  B.  Iron  Co.,  77  Md.  321.  See,  however,  Hether- 
ington  v.  Kemp,  4  Camp.  193. 

The  presumption  is,  in  the  absence  of  evidence  to  the  contrary,  that 
a  letter  was  mailed  and  sent  at  the  time  and  place  shown  by  the  post- 
mark. Stocken  v.  Collin,  7  Mees.  &  W.  515;  New  Haven  County  Bank 
v.  Mitchell,  15  Conn.  206;  Early  v.  Preston,  1  Pat.  &  H.  (Va.)  228. 
And  see  Fletcher  v.  Braddyll,  3  Starkie,  64.  Contra,  Shelburne  Falls 
Nat.  Bank  v.  Townsley,  102  Mass.  177,  3  A.  R.  445.  However,  the 
date  of  the  contents  of  the  letter  raises  no  presumption  that  it  was 
mailed  at  that  time,  or  at  all.  Uhlman  v.  Arnholdt  &  S.  Brew.  Co.,  53 
Fed.  485;  Smiths  v.  Shoemaker,  17  Wall.  (U.  S.)  630. 

21  German  Nat.  Bank  v.  Burns,  12  Colo.  539,  13  A.  S.  R.  247;   Boon 
v.  State  Ins.  Co.,  37  Minn.  426;   Early  v.  Preston,  1  Pat.  &  H.   (Va.) 
228. 

22  James  v.   Wade,   21   La.   Ann.   548.     See  Billgerry   v.   Branch,   19 
Grat.  (Va.)  393,  100  A.  D.  679. 

23  Henderson  v.  Carbondale  Coal  &  Coke  Co.,  140  U.  S.  25;   Schutz 
v.  Jordan,  141  U.  S.  213;  De  Jarnette  v.  McDaniel,  93  Ala.  215;  Penny- 
packer  v.  Capital  Ins.  Co.,  80  Iowa,  56,  20  A.  S.  R.  395;   Sullivan  v. 
Kuykendall,  82  Ky.  483,  56  A,  R.  901;  Huntley  v.  Whittier,  105  Mass. 
391,  7  A.  R.  536;  Greenfield  Bank  v.  Crafts,  4  Allen  (Mass.)  447;  Plath 
v.  Minn.  F.  M.  F.  Ins.  Ass'n,  23  Minn.  479,  23  A.  R.  697;  Nat.  Masonic 
Ace.  Ass'n  v.  Burr,  57  Neb.  437;   Austin  v.  Holland,  69  N.  Y.  571,  25 
A.  R.  246;  Jensen  v.  McCorkell,  154  Pa.  323,  35  A.  S.  R.  843. 

The  presumption  is  sometimes  said  to  be  conclusive  in  the  case  of 


§  25a  AUTHORITY   AND   REGULARITY.  87 

for  instance,  the  addressee  testifies  that  he  did  not  receive  the 
letter,  the  presumption  is  dispelled,  and  the  question  of  its 
receipt  is  one  for  the  jury.24  The  presumption  is  one  of  law, 
however,  so  that,  if  no  evidence  is  adduced  by  the  addressee 
to  rebut  it,  the  presumption  prevails.25 

A  like  presumption  arises  with  reference  to  the  quasi  public 
business  of  telegraph  companies.  If  a  telegram,  properly  ad- 
dressed, is  delivered,  with  proper  charges,  to  the  agent  of  a 
telegraph  company  at  a  sending  office,  for  the  purpose  of  trans- 
mission, the  presumption  is  that  it  was  delivered  in  the  regu- 
lar course  of  the  company's  business.26 

a  mailed  notice  of  nonpayment  or  protest  of  negotiable  paper.  Prop- 
erly speaking,  however,  there  is  no  presumption  in  this  respect.  It 
is  simply  a  rule  of  commercial  law  that  posting  a  notice  constitutes 
due  diligence  on  the  part  of  the  holder,  and  it  is  accordingly  imma- 
terial whether  the  person  liable  receives  it.  Sullivan  v.  Kuykendall, 
82  Ky.  483,  56  A.  R.  901,  903;  Greenfield  Bank  v.  Crafts,  4  Allen  (Mass.) 
447,  457  (semble).  See  note  17,  supra. 

2*Rosenthal  v.  Walker,  111  U.  S.  185;  Home  Ins.  Co.  v.  Marple,  1 
Ind.  App.  411;  Eckerly  v.  Alcorn,  62  Miss.  228;  Hand  v.  Howell,  61 
N.  J.  Law,  142;  Moran  v.  Abbott,  26  App.  Div.  (N.  Y.)  570.  And  see 
In  re  Constantinople  &  A.  Hotel  Co.,  L.  R.  11  Eq.  86,  40  Law  J.  Ch. 
39;  Ault  v.  Interstate  S.  &  L.  Ass'n,  15  Wash.  627. 

The  fact  that  the  addressee  does  not  recollect  receiving  the  letter 
does  not  overcome  the  presumption.  Ashley  Wire  Co.  v.  111.  Steel  Co., 
164  111.  149,  56  A.  S.  R.  187;  East  Tex.  F.  Ins.  Co.  v.  Perkey,  89  Tex. 
604.  See,  however,  Austin  v.  Holland,  69  N.  Y.  571,  25  A.  R.  246. 

It  has  been  held  that  this  presumption  does  not  constitute  a  suffi- 
cient foundation  to  justify  the  admission  of  secondary  evidence  of  their 
contents,  where  the  addressee,  upon  demand  made  to  produce  the  let- 
ters, denied  having  received  them.  Allen  v.  Blunt,  2  Woodb.  &  M. 
121,  Fed.  Gas.  No.  217;  Freeman  v.  Morey,  45  Me.  50,  71  A.  D.  527. 
Contra,  Briggs  v.  Hervey,  130  Mass.  186. 

25  Pitts  v.  Hartford  L.  &  A.  Ins.  Co.,  66  Conn.  376,  50  A.  S.  R.  96; 
Huntley  v.  Whittier,  105  Mass.  391,  7  A.  R.  536.     Contra,  Henderson 
v.  Carbondale  Coal  &  Coke  Co.,  140  U.  S.  25    (semble);    Tanner  v. 
Hughes,  53  Pa.  289. 

26  White  v.  Flemming,  20  N.  S.  335;  Eppinger  v.  Scott,  112  Cal.  369, 
53  A.  S.  R.  220;   Com.  v.  Jeffries,  7  Allen   (Mass.)   548,  83  A.  D.  712; 


88  LAW  OF  EVIDENCE.  §  26a 

(b)  Private  business.  A  presumption  of  performance  may 
arise  with  reference  to  private  business,  as  well  as  public.  Ac- 
cordingly, if  a  regular  and  habitual  mode  of  doing  business 
by  a  certain  person  or  a  certain  class  of  persons  is  shown,  the 
presumption  is  that  a  particular  act  done  by  that  person,  or 
by  one  of  that  class,  was  performed  in  the  usual  manner.21 
So,  if  a  statement  of  an  account  is  made  by  a  banker,  and  sent  to 
the  depositor,  and  the  latter  makes  no  objection  within  a  rea- 
sonable time,  the  presumption  is  that  the  account  is  correct.28 

§  26.    Performance  and  regularity  of  official  acts. 

(a)  Performance.  Generally  speaking,  there  is  no  presump- 
tion that  an  officer  has  performed  any  particular  act  required 
of  him  by  law,  where  that  act  is  in  its  nature  isolated  and 
independent,  and  not  incidental  to  or  necessarily  connected 

State  v.  Gritzner,  134  Mo.  512;  Perry  v.  German  American  Bank,  53 
Neb.  89,  68  A.  S.  R.  593;  Or.  S.  S.  Co.  v.  Otis,  100  N.  Y.  446,  53  A.  R. 
221;  Western  Twine  Co.  v.  Wright,  11  S.  D.  521,  44  L.  R.  A.  438. 

This  presumption  is  not  conclusive;  it  may  be  rebutted.  Eppinger 
v.  Scott,  supra;  Com.  v.  Jeffries,  supra. 

21  Ivy  v.  Yancey,  129  Mo.  501;  Fox  v.  Windes,  127  Mo.  502,  48  A.  S. 
R.  648;  Ashe  v.  Derosset,  53  N.  C.  (8  Jones)  240;  Johnston  v.  Bar- 
rills,  27  Or.  251,  50  A.  S.  R.  717.  And  see  Thomson  v.  Porter,  4  Strob. 
Eq.  (S.  0.)  58,  53  A.  D.  653. 

Where  it  was  the  usage  of  an  hotel  to  deposit  all  letters  left  at  the 
bar  in  an  urn  kept  for  that  purpose,  whence  they  were  sent  frequently 
throughout  tne  day  to  the  rooms  of  the  different  guests  to  whom  they 
were  directed,  it  is  presumed  that  a  letter  left  at  the  bar  for  a  par- 
ticular guest  was  received  by  him.  Dana  v.  Kemble,  19  Pick.  (Mass.) 
112. 

as  First  Nat.  Bank  v.  Allen,  100  Ala.  476,  46  A.  S.  R.  80;  Janin  v. 
London  &  S.  F.  Bank,  92  Cal.  14,  27  A.  S.  R.  82;  Ault  v.  Interstate  S. 
&  L.  Ass'n,  15  Wash.  627.  And  see  Webb  v.  Chambers,  25  N.  C.  (3 
Ired.)  374. 

This  presumption  is  rebuttable  (First  Nat.  Bank  v.  Allen,  supra), 
unless  the  creditor  has  been  prejudiced  by  the  debtor's  acquiescence 
Uanln  v.  London  &  S.  F.  Bank,  supra;  Weinstein  v.  Jefferson  Nat. 
Bank,  69  Tex.  38,  5  A.  S.  R.  23). 


§  26a  AUTHORITY   AND   REGULARITY.  89 

with  some  other  official  act  which  he  is  shown  to  have  per- 
formed. Accordingly,  the  party  to  whose  interest  it  is  to 
show  performance  of  the  act  is  under  the  necessity  of  addu- 
cing evidence  of  its  performance.29  Where,  for  example,  an 
officer  acts  under  a  naked  statutory  power,  with  a  view  to 
divest,  upon  certain  contingencies,  the  title  of  a  citizen,30  as 
in  the  case  of  a  sale  of  land  for  taxes  or  special  assessments,81 

z»U.  S.  v.  Carr,  132  U.  S.  644,  652;  Sabariego  v.  Maverick,  124  U.  S. 
261;  U.  S.  v.  Ross,  92  U.  S.  281.  And  see  State  v.  Glisson,  93  N.  C. 
606.  See,  however,  Finch  v.  Barclay,  87  Ga.  393. 

An  officer's  performance  of  a  vital  jurisdictional  act  cannot  be  in- 
dulged in  favor  of  a  right  of  action  depending  solely  upon  the  per- 
formance of  the  act  by  him.  Albany  v.  McNamara,  117  N.  Y.  168. 
Thus,  if  a  sheriff  executes  a  certificate  of  purchase  to  one  person,  and 
afterwards  makes  a  deed  of  the  same  property  to  another,  it  is  not 
presumed  that  the  grantee  has  succeeded  to  the  rights  of  the  certificate 
holder.  Hannah  v.  Chase,  4  N.  D.  351,  50  A.  S.  R.  656.  See,  however, 
Cooper  v.  Granberry,  33  Miss.  117. 

If,  however,  an  act  required  by  law  to  be  done  by  an  officer  appears 
to  have  been  done,  though  by  whom  does  not  appear,  the  presumption 
is  that  the  officer  did  it.  Conwell  v.  Watkins,  71  111.  488. 

There  is  no  presumption  that  the  duties  of  a  private  agent  have 
been  performed.  Ward  v.  Metropolitan  L.  Ins.  Co.,  66  Conn.  227,  50 
A.  S.  R.  80. 

so  Martin  v.  Rushton,  42  Ala.  289;  Ft.  Smith  v.  Dodson,  51  Ark.  447, 
14  A.  S.  R.  62. 

If  municipal  officers  destroy  private  property  as  a  nuisance,  without 
first  condemning  it  by  appropriate  proceedings,  the  burden  is  on  them, 
when  sued  by  the  owner,  to  show  that  it  was  in  fact  a  nuisance.  Sa- 
vannah v.  Mulligan,  95  Ga.  323,  51  A.  S.  R.  86.  It  has  been  held,  how- 
ever, that,  in  a  collateral  attack  on  condemnation  proceedings,  the  pre- 
sumption of  regularity  applies.  Leonard  v.  Sparks,  117  Mo.  103,  38 
A.  S.  R.  646. 

si  Ronkendorff  v.  Taylor's  Lessee,  4  Pet.  (U.  S.)  349;  McClung  v. 
Ross,  5  Wheat.  (U.  S.)  116;  Thatcher  v.  Powell,  6  Wheat.  (U.  S.)  119; 
Keane  v.  Cannovan,  21  Cal.  291,  82  A.  D.  738;  Nichols  v.  Bridgeport, 
23  Conn.  189,  60  A.  D.  636;  McGahen  v.  Carr,  6  Iowa,  331,  71  A.  D.  421; 
Terry  v.  Bleight,  3  T.  B.  Mon.  (Ky.)  270,  16  A.  D.  101  (under  act  of 
congress);  Polk  v.  Rose,  25  Md.  153,  89  A.  D.  773;  Jackson  v.  Shep- 
ard,  7  Cow.  (N.  Y.)  88,  17  A.  D.  502;  Sharp  v.  Johnson,  4  Hill  (N.  Y.) 


90  LAW   OF   EVIDENCE.  §  26a 

the  party  claiming  by  virtue  of  the  proceeding  must  show 
that  every  preliminary  step  required  by  law  has  been  taken, 
else  he  shall  fail. 

If,  however,  it  is  shown  that  a  particular  act  was  per- 
formed by  the  officer  in  substance,  a  presumption  arises,  in  the 
absence  of  evidence  to  the  contrary,  that  in  doing  the  act  he 
also  observed  the  formal  requisites  appertaining  to  it;  as 
where-  some  incidental  act  is  required  to  be  performed  before, 
at  the  time  of,  or  after  performance  of  the  principal  act,  or 

92,  40  A.  D.  259;  Townsend  v.  Downer's  Estate,  32  Vt.  183.  Contra, 
Shelbyville  Water  Co.  v.  People,  140  111.  545,  16  L.  R.  A.  505;  Terry  v. 
Bleight,  3  T.  B.  Mon.  (Ky.)  270,  16  A.  D.  101  (under  state  law); 
Ward's  Lessee  v.  Barrows,  2  Ohio  St.  242.  However,  compliance  with 
the  statutory  requisites  may  be  proved  by  circumstances  justifying  a 
so-called  presumption  of  fact.  Coxe  v.  Deringer,  82  Pa.  236. 

At  common  law,  no  presumption  of  regularity  arises  from  the  re- 
citals in  a  tax  deed.  Williams  v.  Peyton's  Lessee,  4  Wheat.  (U.  S.) 
77;  Miller  v.  Miller,  96  Cal.  376,  31  A.  S.  R.  229;  Keane  v.  Cannovan, 
21  Cal.  291,  82  A.  D.  738;  Brown  v.  Castellaw,  33  Fla.  204,  211;  Worth- 
ing v.  Webster,  45  Me.  270,  71  A.  D.  543;  Jackson  v.  Shepard,  7  Cow. 
(N.  Y.)  88,  17  A.  D.  502;  Hilton  v.  Bender,  69  N.  Y.  75;  Brown  v. 
Wright,  17  Vt.  97,  42  A.  D.  481.  This  rule  has  been  altered  in  many 
states  by  statute,  so  that  the  tax  deed  makes  a  prima  facie  case  of 
regularity.  Pillow  v.  Roberts,  12  Ark.  822;  Washington  v.  Hosp,  43 
Kan.  324,  19  A.  S.  R.  141.  And  see  State  v.  Mastin,  103  Mo.  508. 
This  statutory  presumption  is  rebuttable.  De  Frieze  v.  Quint,  94  Cal. 
653,  28  A.  S.  R.  151;  Skinner  v.  Brown,  17  Ohio  St.  33;  Hurd  v.  Bris- 
ner,  3  Wash.  1,  28  A.  S.  R.  17. 

Property  shown  to  have  been  once  exempt  is  presumed  to  continue 
so.  Allen  County  Com'rs  v.  Simons,  129  Ind.  193,  13  L.  R.  A.  512. 
However,  the  burden  of  showing  that  he  has  not  received  the  benefit  of 
an  exemption  rests  upon  the  tax  payer.  South  Nashville  St.  ~R.  Co.  v. 
Morrow,  87  Tenn.  406,  2  L.  R.  A.  853. 

The  presumption  of  regularity  is  applied  to  a  certain  extent  to  tax 
proceedings,  however,  as  will  be  seen  in  the  following  cases: 

Regularity  of  assessment.  Perkins  v.  Nugent,  45  Mich.  156;  State 
v.  Williams,  99  Mo.  291. 

Consideration  of  benefits  in  fixing  taxing  district  for  local  improve- 
ment. King  v.  Portland,  38  Or.  402,  55  L.  R.  A.  812. 

Equalization  of  assessments.    Guy  v.  Washburn,  23  Cal.  111. 


§  26a  AUTHORITY   AND   REGULARITY.  gj 

\ 

after  the  performance  of  one  act  and  before  the  performance 
of  another.  Accordingly,  if  it  is  material  to  a  party's  case  to 
show  that  the  incidental  act  was  not  performed  by  the  officer 
in  connection  with  the  principal  act,  the  burden  is  on  that 
party  to  adduce  evidence  of  the  irregularity.32  This  pre- 
sumption of  regularity,  it  will  be  observed,  applies  only  to  an 
official  duty  in  the  performance  of  which  the  officer  is  re- 
quired to  perform,  either  concurrently  or  consecutively,  sev- 

32  Rex  v.  Whiston,  4  Adol.  &  E.  607;  Adams  v.  Cowles,  95  Mo.  501, 
6  A.  S.  R.  74;  Ward's  Lessee  v.  Barrows,  2  Ohio  St.  242. 

Issuance  of  extradition  warrant— Proof  of  flight  from  justice  pre- 
sumed. State  v.  Justus,  84  Minn.  237,  55  L.  R.  A.  325. 

Increase  of  capital  stock — Prior  payment  of  tax  therefor  presumed. 
Peck  v.  Elliott,  47  U.  S.  App.  605,  79  Fed.  10,  38  L.  R.  A.  616. 

Issuance  of  execution  by  clerk — Prior  direction  of  party  presumed. 
Niantic  Bank  v.  Dennis.  37  111.  381. 

Land  grant — Prior  filing  of  warrant  presumed.  Hickman  v.  Boff- 
man,  Hardin  (Ky.)  356. 

Municipal  election — Prior  notice  presumed.  Knox  County  v.  Ninth 
Nat.  Bank,  147  U.  S.  91. 

Patent  and  town  company  deed — Proper  proceedings  presmmed. 
Mathews  v.  Buckingham,  22  Kan.  166. 

Renewal  of  patent  for  invention — Requisite  proofs  presumed.  Phila. 
&  T.  R.  Co.  v.  Stimpson,  14  Pet.  (U.  S.)  448. 

Seizure  by  one  of  two  overseers — Consent  of  other  presumed.  Down- 
ing v.  Rugar,  21  Wend.  (N.  Y.)  178,  34  A.  D.  223. 

Enactment  of  statute — Consent  of  persons  affected  presumed.  Wel- 
lington's Case,  16  Pick.  (Mass.)  87,  26  A.  D.  631. 

Grant  of  warning  order  by  clerk  of  court — Oath  to  affidavit  presumed. 
Sears  v.  Sears,  95  Ky.  173,  44  A.  S.  R.  213. 

Swamp-land  patent — Recordation  presumed.  Nitche  v.  Earle,  117  Ind. 
270. 

Sheriff's  sale — Proper  delivery  of  writ  to  levying  officer  presumed. 
Leger  v.  Doyle,  11  Rich.  Law  (S.  C.)  109,  70  A.  D.  240.  Prior  levy 
presumed.  Greer  v.  Wintersmith,  85  Ky.  516,  7  A.  S.  R.  613;  Hart- 
well  v.  Root,  19  Johns.  (N.  Y.)  345,  10  A.  D.  232.  Advertisement  pre- 
sumed. Culbertson  v.  Milhollin,  22  Ind.  362,  85  A.  D.  428.  Posting 
of  notice  presumed.  Wood  v.  Morehouse,  45  N.  Y.  368. 

This  rule  involves  the  maxim,  Probatis  extremis,  praesumuntur 
media. 


92  LAW  OF  EVIDENCE.  §   26b 

eral  acts  which  are  accordingly  related,  connected,  and  inter- 
dependent; and  it  applies  only  when  a  principal  act  is  estab- 
lished by  evidence,  and  only  to  formalities  attached  by  law  to 
the  act.  It  does  not  dispense  with  proof  of  the  principal  act 
itself,  but  only  of  incidents  thereto.33 

While,  as  we  have  seen,  there  is  not,  generally  speaking, 
any  presumption  that  an  officer  has  performed  his  duty  in  any 
particular  respect,  neither  is  there,  on  the  other  hand,  any 
presumption  that  he  has  failed  to  perform  it.  If  a  party's 
case  depends  for  its  validity  upon  the  performance  of  an  offi- 
cial duty  in  some  respect,  there  is  not  ordinarily  any  pre- 
sumption to  help  him  out.  He  must  prove  it.  If,  on  the 
other  hand,  his  case  depends  upon  the  nonperformance  of  an 
official  duty  in  a  certain  particular,  he  must  likewise  prove 
that.  There  is  no  presumption  to  aid  him.  If,  for  instance, 
a  certain  class  of  documents  is  required  by  law  to  be  kept  in 
a  certain  public  office,  and  a  particular  instrument  of  that 
class  cannot  be  found  there,  the  presumption  is  that  it  never 
existed.34  Any  contrary  presumption  would  involve  the  as- 
sumption of  a  violation  of  duty,  either  on  the  part  of  the  per- 
son whose  business  it  was  to  deposit  the  instrument  in  the 
office,  or  on  the  part  of  the  custodian  safely  to  keep  it.  So  far, 
then,  as  isolated  and  independent  official  acts  are  concerned, 
there  is  no  presumption  either  for  or  against  their  having  been 
performed,  and  the  burden  of  adducing  evidence  of  perform- 
ance or  of  nonperformance  rests  on  the  party  who,  by  the 
rules  of  pleading  or  substantive  law,  is  bound  to  show  that  the 
act  was  or  was  not  done,  as  the  case  may  be. 

(b)  Regularity.    When  it  appears  that  an  officer  has  done 

33  See  cases  cited  in  notes  29-31,  supra. 

34Morrill  v.  Douglass,  14  Kan.  293;  Hall  v.  Kellogg,  16  Mich.  135. 
This  presumption  is  by  no  means  conclusive.     Morrill  v.  Douglass, 
supra. 


§  26b  AUTHORITY   AND   REGULARITY.  93 

some  act  in  his  official  capacity,  the  presumption  is  that  he 
has  done  it  regularly  and  correctly.88     Thus,  in  the  absence  of 

as  Reg.  v.  Broadhempston,  28  Law  J.  M.  Gas.  18;  Butler  v.  Allnutt,  1 
Starkie,  222;  U.  S.  v.  Weed,  5  Wall.  (U.  S.)  62;  U.  S.  v.  Jones,  31  Fed. 
718;  Templeton  v.  Morgan,  16  La.  Ann.  438;  Hamilton  v.  McConkey's 
Adm'r,  83  Va.  533. 

Transfer  of  public  lands.  Minter  v.  Crommelin,  18  How.  (U.  S.)  87; 
Lea  v.  Polk  County  Copper  Co.,  21  How.  (U.  S.)  493;  Lamm  v.  C.,  St. 
P.,  M.  &  O.  R.  Co.,  45  Minn.  71,  10  L.  R.  A.  268;  State  v.  Wayne  County 
Ct,  98  Mo.  362;  Dolph  v.  Barney,  5  Or.  191;  Allegheny  v.  Nelson,  25  Pa. 
332;  .Tipton  v.  Sanders,  2  Head  (Tenn.)  690;  Willis  v.  Lewis,  28  Tex. 
185;  Quinlan  v.  H.  &  T.  C.  R.  Co.,  89  Tex.  356. 

Service  of  process.  State  v.  Wenzel,  77  Ind.  428;  Wilkins  v.  Tourtel- 
lott,  42  Kan.  176;  Case  v.  Colston,  1  Mete.  (Ky.)  145;  Shorey  v.  Hussey, 
32  Me.  579;  Richardson  v.  Smith,  1  Allen  (Mass.)  541. 

Notarial  acts.  Squier  v.  Stockton,  5  La.  Ann.  120,  52  A.  D.  583; 
Laune's  Succession,  6  La.  Ann.  530. 

Apportionment  of  county  into  assembly  districts.  Baird  v.  Kings 
County  Sup'rs,  138  N.  Y.  95. 

Changes  in  plans  of  county  buildings.  Gibson  County  Com'rs  v.  Cin- 
cinnati Steam  Heat.  Co.,  128  Ind.  240,  12  L.  R.  A.  502. 

Civil-service  classification.  Chittenden  v.  Wurster,  152  N.  Y.  345,  37 
L.  R.  A.  809. 

Issuance  of  warrant  on  state  treasury.  Nat.  Bank  of  D.  O.  Mills  & 
Co.  v.  Herold,  74  Cal.  603,  5  A.  S.  R.  476. 

Public  accounts.     Hemingway  v.  State,  68  Miss.  371. 

Record  of  deed.    Forsaith  v.  Clark,  21  N.  H.  409. 

Removal  of  officer.  People  v.  Martin,  19  Colo.  565,  24  L.  R.  A.  201; 
Dubuc  v.  Voss,  19  La.  Ann.  210,  92  A.  D.  526;  State  v.  Prince,  45  Wis. 
610. 

Election  contest  before  legislature.  Taylor  v.  Beckham,  108  Ky.  278, 
94  A.  S.  R.  357. 

This  presumption  applies  in  favor  of  the  acts  of  foreign  officers 
(Frierson  v.  Galbraitlr,  80  Tenn.  129;  Gonzales  v.  Ross,  120  U.  S.  605; 
Sadler  v.  Anderson,  17  Tex.  245),  unless  the  act  is  contrary  to  or  beyond 
the  usual  scope  of  the  duties  of  officers  of  the  class  to  which  the  office 
In  question  belongs  (Jones  v.  Muisbach,  26  Tex.  235). 

The  presumption  has  been  applied  to  agents.  If  a  deed  executed  by 
an  agent  is  apparently  within  the  scope  of  his  power,  the  presumption 
is  that,  in  making  it,  he  performed  his  duty  to  his  principal.  Clements 
v.  Macheboeuf,  92  U.  S.  418. 

No  presumption  arises  in  favor  of  the  regularity  of  an  assessment 


OP  EVIDENCE.  §  26b 

evidence  to  the  contrary,  public  surveys  are  presumed  to  be 
correct,36  and  laws  are  presumed  to  have  been  regularly  en- 
acted,37 and  the  regularity  of  all  proceedings  leading  up  to  a 
judicial  sale  will  be  presumed.38  In  connection  with  judicial 

by  a  mutual  benefit  society,  however.  American  Mut.  Aid  Soc.  v.  Hel- 
burn,  85  Ky.  1,  7  A.  S.  R.  571.  - 

ssAshe  v.  Lanham,  5  Ind.  434;  Trotter  v.  St.  L.  Public  Schools,  9  Mo. 
69.  And  see  Harris'  Lessee  v.  Burchan,  1  Wash.  C.  C.  191,  Fed.  Cas. 
No.  6,117;  Baeder  v.  Jennings,  40  Fed.  199. 

This  presumption  is  rebuttable.     Barnhart  v.  Ehrhart,  33  Or.  274. 

37  Perry  County  v.  S.,  M.  &  M.  R.  Co.,  58  Ala.  546;  People  v.  Dunn, 
SO  Cal.  211,  13  A.  S.  R.  118;  People  v.  Loewenthal,  93  111.  191;  Bedard 
v.  Hall,  44  111.  91;  Taylor  v.  Beckham,  21  Ky.  L.  R.  1735,  56  S.  W.  177, 
49  L.  R.  A.  258;  Hollingsworth  v.  Thompson,  45  La.  Ann.  222,  40  A.  S. 
R.  220;  People  v.  McElroy,  72  Mich.  446,  2  L.  R.  A.  609;  Bound  v.  Wis. 
Cent.  R.  Co.,  45  Wis.  543. 

Quorum.     State  v.  Ellington,  117  N.  C.  158,  53  A.  S.  R.  580. 

Third  reading  or  suspension  of  rules.  Schuyler  County  Sup'rs  v. 
People,  25  111.  181;  In  re  Ellis'  Estate,  55  Minn.  401,  43  A.  S.  R.  514. 

Constitutional  majority  on  third  reading.  Williams  v.  State,  6  Lea 
<Tenn.)  549. 

Assent  of  senate  and  house  and  approval  of  governor.  Opinion  of 
the  Justices,  52  N.  H.  622. 

Regularity  of  amendment.    Miller  v.  State,  3  Ohio  St.  475. 

This  presumption  may  be  overcome  by  the  legislative  journals.  State 
v.  Swan,  7  Wyo.  166,  40  L.  R.  A.  195. 

ssRitter  v.  Scannell,  11  Cal.  238,  70  A.  D.  775;  Hitchcock  v.  Hahn, 
60  Mich.  459;  Agan  v.  Shannon,  103  Mo.  661;  Wood  v.  Chapin,  13  N. 
Y.  509,  67  A.  D.  62  (semble);  Smith  v.  Crosby,  86  Tex.  15,  40  A.  S.  R. 
818;  Tacoma  Grocery  Co.  v.  Draham,  8  Wash.  263,  40  A.  S.  R.  907. 

Prior  certification  to  circuit  court  of  judgment  of  common  pleas.  Bai- 
ley v.  Winn,  101  Mo.  649. 

Indorsement  of  writ  by  proper  court.  Thomas  v.  Malcom,  39  Ga.  328, 
99  A.  D.  459. 

Nonexcessiveness  of  levy.    Hefner  v.  Hesse,  29  La.  Ann.  149. 

Judgment  debtors'  ownership  of  property  levied  on.  Hogue  v.  Cor- 
"bit,  156  111.  540,  47  A.  S.  R.  232. 

Vacancy  of  land.     Drysdale  v.  Biloxi  Canning  Co.,  67  Miss.  534. 

Retention  of  writ  until  sale.  Bradley  v.  Sandilands,  66  Minn.  40,  61 
A.  S.  R.  386. 

Compliance  with  law  as  to  place  of  posting  notice.     Evans  v.  Rob- 


§  26b  AUTHORITY   AND   REGULARITY.  95 

sales,  another  presumption,  so-called,  may  be  mentioned. 
Where  an  authority  is  given  by  law  to  guardians,  personal 
representatives,  sheriffs,  or  other  officers  to  make  sales  of 
lands  upon  being  licensed  by  the  courts,  and  they  are  required 
to  advertise  the  sales  in  a  particular  manner,  and  to  observe 
other  formalities  in  their  proceedings,  the  lapse  of  sufficient 
time  (which,  in  most  cases,  is  fixed  at  twenty  years),  coupled 
with  possession  on  the  part  of  those  claiming  under  the  sale, 
is  said  to  raise  a  conclusive  presumption  that  all  legal  for- 
malities of  the  sale  were  observed.39  This  so-called  presump- 

berson,  92  Mo.  192,  1  A.  S.  R.  701.  And  see  Drake  v.  Mooney,  31  Vt. 
617,  76  A.  D.  145. 

Notice  of  sale  under  trust  deed.  Tyler  v.  Herring,  67  Miss.  169,  19  A. 
S.  R.  263. 

Compliance  with  law  as  to  time  and  place  of  sale.  Kendrick  v. 
Latham,  25  Fla.  819;  Childs  v.  McChesney,  20  Iowa,  431,  89  A.  D.  545; 
Blodgett  v.  Perry,  97  Mo.  263,  10  A.  S.  R.  307;  Howard  v.  North,  5  Tex. 
290,  51  A.  D.  769. 

Sufficiency  of  price.  Price  v.  Springfield  R.  E.  Ass'n,  101  Mo.  107,  20 
A.  S.  R.  595. 

Transfer  of  bidder's  rights  to  grantee  in  sheriff's  deed.  Cooper  v. 
Cranberry,  33  Miss.  117.  See,  however,  Hannah  v.  Chase,  4  N.  D.  351, 
50  A.  S.  R.  656. 

Confirmation  of  a  sale  cannot  be  presumed,  however.  Walker  v.  Jes- 
«up,  43  Ark.  163. 

«»  See  1  Greenl.  Ev.  §  20;  Bustard  v.  Gates,  4  Dana  (Ky.)  429. 

Administrators'  and  executors'  sales.  Austin  v.  Austin,  50  Me.  74,  79 
A.  D.  597;  Price  v.  Springfield  R.  E.  Ass'n,  101  Mo.  107,  20  A.  S.  R. 
595;  Winkley  v.  Kaime,  32  N.  H.  268;  Gray  v.  Gardner,  3  Mass.  399; 
Battles  v.  Holley,  6  Me.  145;  Wyatt's  Adm'r  v.  Scott,  33  Ala.  313.  And 
see  Stevenson's  Heirs  v.  McReary,  12  Smedes  &  M.  (Miss.)  9,  51  A.  D. 
102;  Agan  v.  Shannon,  103  Mo.  661. 

Guardians'  sales.     Seward  v.  Didier,  16  Neb.  58. 

Sheriffs'  sales.  Drouet  v.  Rice,  2  Rob.  (La.)  374;  Hammond  v.  Gor- 
•don,  93  Mo.  223.  And  see  Drake  v.  Duvenick,  45  Cal.  455. 

Tax  sales.  Freeman  v.  Thayer,  33  Me.  76.  And  see  Pejepscut  Pro- 
prietors v.  Ransom,  14  Mass.  145;  Blossom  v.  Cannon,  14  Mass.  177; 
Colman  v.  Anderson,  10  Mass.  105. 

Lapse  of  time  alone  is  not  sufficient  to  raise  the  presumption.    It 


96  LAW  OF  EVIDENCE.  §  26b 

tion  is  not  truly  such.  It  is  a  rule  of  substantive  law  that 
after  the  lapse  of  time,  coupled  with  possession,  the  titular 
owner  cannot  defeat  the  sale  for  irregularities. 

The  presumption  of  regularity  is  applied  in  favor  of  the 
acts  of  municipal  officers.40  It  is  presumed  that,  in  organizing 
a  municipal  corporation,  the  authorities  acted  with  regular- 
ity;41 and  that,  in  exacting  ordinances42  and  in  making  con- 
tracts,43 the  officers  'of  the  municipality  acted  properly,  and 
observed  the  formalities  imposed  by  law. 

In  an  election  contest,  the  presumption  is  that  the  official 
count  is  correct,  and  the  burden  of  proof  rests,  accordingly, 
on  the  contestant.44  He  must  therefore  establish  that  excluded 
ballots,  which  he  claims  were  cast  for  him,  are  genuine  bal- 

must  be  coupled  with  long  possession  on  the  part  of  those  claiming  un- 
der the  deed.  Worthing  v.  Webster,  45  Me.  270,  71  A.  D.  543.  And  see 
Eldridge  v.  Knott,  Cowp.  214. 

4<>Knox  County  v.  Ninth  Nat.  Bank,  147  U.  S.  91;  Lostutter  v.  Aurora, 
126  Ind.  436;  Mussey  v.  White,  3  Me.  290;  Henry  v.  Dulle,  74  Mo.  443; 
Hudson  County  v.  State,  24  N.  J.  Law,  718;  Perry  v.  Salt  Lake  City,  7 
Utah,  143,  11  L.  R.  A.  446. 

41  People  v.  Farnham,  35  111.  562.    And  see  Bassett  v.  Porter,  4  Gush. 
(Mass.)  487;  New-Boston  v.  Dunbarton,  12  N.  H.  409. 

Organization  of  private  corporations,  see  §  28 (a),  infra. 

42  Van  Buren  v.  Wells,  53  Ark.  368,  22  A.  S.  R.  214;  Bayard  v.  Baker, 
76  Iowa,  220;  Duluth  v.  Krupp,  46  Minn.  435;  Barber  Asphalt  Pav.  Co. 
v.  Hunt,  100  Mo.  22,  18  A.  S.  R.  530;  Consol.  Traction  Co.  v.  Elizabeth, 
58  N.  J.  Law,  619,  32  L.  R.  A.  170;  Trenton  H.  R.  Co.  v.  Trenton,  53  N. 
J.  Law,  132,  11  L.  R.  A.  410;   Wood  v.  Seattle,  23  Wash.  1,  52  L.  R. 
A.  369.     Contra,  Schott  v.  People,  89  111.  195. 

43  New  Orleans  v.  Halpin,  17  La.  Ann.  185,  87  A.  D.  523.     And  see 
Jackson  School  Tp.  v.  Hadley,  59  Ind.  534. 

44  Powell  v.  Holman,  50  Ark.  85;  Hartman  v.  Young,  17  Or.  150,  11 
A.  S.  R.  787;   State  v.  Norton,  46  Wis.  332.    And  see  State  v.  Walsh, 
62  Conn.  260,  17  L.  R.  A.  364.     See,  also,  note  8,  supra. 

This  presumption  is  rebuttable.  Powell  v.  Holman,  50  Ark.  85; 
Kreitz  v.  Behrensmeyer,  125  111.  141,  8  A.  S.  R.  349;  People  v.  Pease,  27 
N.  Y.  45,  84  A.  D.  242;  State  v.  Norton,  46  Wis.  332.  And  see  People 
v.  Grand  County  Com'rs,  6  Colo.  202. 


§  26c  AUTHORITY   AND   REGULARITY.  97 

lots  lawfully  cast  at  the  election,  in  order  to  overcome  the 
presumption  of  regularity  attaching  to  the  official  count  ;45  and 
if  he  claims  that  the  ballots  cast  for  the  adverse  party  are 
invalid,  he  must  prove  that  fact.46 

If  a  person  holding  two  offices  has  done  an  act  which  would 
be  authorized  in  one  of  his  capacities,  and  not  in  the  other, 
the  presumption  is  that  the  act  was  done  in  the  exercise  of  the 
proper  office.47 

The  presumption  just  considered,  it  will  be  observed,  con- 
stitutes a  prima  facie  case,  not  that  an  official  act  has  been 
done,  but  that  an  official  act  which  is  otherwise  shown  to  have 
been  done  has  been  done  regularly  and  correctly. 

(c)  Nature  and  qualification  of  presumption.  The  pre- 
sumption 'of  performance  of  official  acts  does  not  apply  where 
the  act  in  question  is  of  a  class  required  by  law  to  be  evi- 
denced by  a  public  document  or  record.  If  the  record  or  doc- 
ument is  not  produced,  its  absence  must  therefore  be  ac- 
counted for,  and  it  must  be  supplied  by  secondary  evidence.48 
Nor  will  a  presumption  in  favor  of  the  regularity  of  an  offi- 
cial act  be  indulged  if  it  militates  against  the  regularity  of 

*»Kreitz  v.  Behrensmeyer,  125  111.  141,  8  A.  S.  R.  349;  Hartman  v. 
Young,  17  Or.  150,  11  A.  S.  R.  787;  Fenton  v.  Scott,  17  Or.  189,  11  A. 
S.  R.  801. 

«  Russell  v.  McDowell,  83  Cal.  70;  Dorsey  v.  Brigham,  177  111.  250, 
69  A.  S.  R.  228;  Kreitz  v.  Behrensmeyer,  125  111.  141,  8  A.  S.  R.  349; 
Beardstown  v.  Virginia  City,  76  111.  34;  Gumm  v.  Hubbard,  97  Mo.  311, 
10  A.  S.  R.  312;  Boyer  y.  Teague,  106  N.  C.  576,  19  A.  S.  R.  547.  And 
see  State  v.  Walsh,  62  Conn.  260,  17  L.  R.  A.  364. 

If  fraud  at  a  particular  precinct  is  shown,  the  entire  vote  must  be 
rejected  unless  the  party  claiming  the  benefit  of  votes  cast  there  shows 
that  they  are  valid.  Lloyd  v.  Sullivan,  9  Mont.  577. 

*T  Whittington  v.  Whittington,  24  La.  Ann.  157;  Jay  v.  Carthage,  48 
Me.  353;  Owen  v.  Baker,  101  Mo.  407,  20  A.  S.  R.  618.  And  see  Ivy  v. 
Yancey,  129  Mo.  501. 

«  Brunswick  v.  McKean,  4  Me.  508.  And  see  Pearsall  v.  Eaton  County 
Sup'rs,  71  Mich.  438;  Hilton  v.  Bender,  69  N.  Y.  75. 

Hammon,  Ev. — 7. 


98  LAW   OF   EVIDENCE.  §   27a 

some  other  official  act.49  And  these  presumptions  apply  in 
favor  of  official  acts  only.  The  private  acts  of  an  officer 
stand  on  the  same  footing  as  the  private  acts  of  other  men.50 
This  is  not  a  conclusive  presumption.  Its  effect  is  to  cast 
the  burden  of  adducing  evidence  of  irregularity  or  nonper- 
formance  upon  the  party  against  whom  it  operates.51  And 
when  such  evidence  is  adduced,  the  presumption  disappears, 
and  the  question  becomes  one  of  fact  for  the  jury  to  deter- 
mine upon  all  the  evidence,  without  reference  to  any  pre- 
sumption.52 

§  27.    Judicial  proceedings. 

(a)  Jurisdiction.  It  is  a  maxim  of  the  law  that  nothing  is 
intended  to  be  out  of  the  jurisdiction  of  a  superior  court  but 
that  which  expressly  appears  to  be  so.  Hence,  though  the 
existence  of  any  jurisdictional  fact  may  not  be  affirmed  upon 
the  record,  it  will  be  presumed,  upon  a  collateral  attack,  that 
the  court,  if  of  superior  jurisdiction,  has  acted  with  due  au- 

49  Houghton  County  Sup'rs  v.  Rees,  34  Mich.  481;  Gibson  v.  Martin,  7 
Humph.  (Tenn.)  127,  128. 

BO  Hannah  v.  Chase,  4  N.  D.  351,  50  A.  S.  R.  656;  Murphy  v.  Chase, 
103  Pa.  260. 

siMinter  v.  Crommelin,  18  How.  (U.  S.)  87;  People  v.  Grand  County 
Com'rs,  6  Colo.  202;  Sage  v.  Board  of  Liquidation,  37  La.  Ann.  412; 
Farr  v.  Sims,  Rich.  Eq.  Gas.  (S,  C.)  122,  24  A.  D.  396;  Sternberger  v. 
McSween,  14  S.  C.  35. 

Rebuttal  of  presumption  of  delivery  of  letters,  see  §  25 (a),  supra; 
of  delivery  of  telegrams,  see  note  26,  supra;  of  correctness  of  public 
surveys,  see  note  36,  supra;  of  correctness  of  election  returns,  see  note 
44,  supra;  of  authority  of  attorney  at  law,  see  §  24,  supra;  of  correct- 
ness of  stated  account,  see  note  28,  supra;  of  regularity  of  enactment 
of  laws,  see  note  37,  supra;  of  regularity  of  tax  proceedings,  see  note 
31,  supra. 

The  presumption  of  regularity  of  certain  judicial  sales  becomes  con- 
clusive after  long  lapse  of  time,  coupled  with  possession  on  the  part 
of  those  claiming  under  the  sale.  See  page  94,  supra. 

52  People  v.  Sanders,  114  Cal.  216,  236. 


§   27a  AUTHORITY    AND    REGULARITY.  99 

thority,  and  its  judgment  is  as  valid  as  if  every  fact  necessary 
to  give  it  jurisdiction  affirmatively  appeared.53 

So  far  as  domestic  judgments  are  concerned,  this  presump- 
tion may  be  indulged  as  to  facts  only.  There  is  no  presump- 
tion that  the  law  gives  the  court  jurisdiction  over  any  par- 
ticular class  of  cases,  since  this  is  a  question  of  domestic  law, 
as  to  which  there  is  no  room  for  any  presumption.  If,  for 
instance,  a  statute  purporting  to  confer  jurisdiction  in  a  cer- 
tain class  of  cases  is  void,  no  presumption  can  be  indulged 
that  the  court  had  jurisdiction  of  any  case  of  that  class.54 

The  presumption  of  jurisdiction  arises  with  reference,  not 
only  to  the  subject-matter,  but  also  to  the  person  of  the  de- 
fendant.55 Thus,  it  is  presumed  in  favor  of  a  domestic  judg- 

53  ENGLAND:     Peacock  v.  Bell,  1  Saund.  73. 

UNITED  STATES:  Galpin  v.  Page,  18  Wall.  350;  Florentine  v.  Barton, 
2  Wall.  210;  Foster  v.  Givens,  31  U.  S.  App.  626. 

ALABAMA:     Thompson  v.  Thompson,  91  Ala.  591,  11  L.  R.  A.  443. 

ABKANSAS:     Marks  v.  Matthews,  50  Ark.  338. 

CALIFORNIA:     In  re  Warfield's  Will,  22  Gal.  51,  83  A.  D.  49. 

GEORGIA  :  Wiggins  v.  Gillette,  93  Ga.  20,  44  A.  S.  R.  123;  Bush  v. 
Lindsey,  24  Ga.  245,  71  A.  D.  117. 

INDIANA:  Godfrey  v.  Godfrey,  17  Ind.  6,  79  A.  D.  448;  Hancock 
County  Com'rs  v.  Leggett,  115  Ind.  544;  Houk  v.  Barthold,  73  Ind.  21. 

KANSAS:     English  v.  Woodman,  40  Kan.  752. 

MISSISSIPPI:     Ames  v.  Williams,  72  Miss.  760. 

OHIO:     Maxsom's  Lessee  v.  Sawyer,  12  Ohio,  195. 

RHODE  ISLAND:     Thornton  v.  Baker,  15  R.  I.  553,  2  A.  S.  R.  925. 

TEXAS:  Harris  v.  Daugherty,  74  Tex.  1,  15  A.  S.  R.  812;  Withers  v. 
Patterson,  27  Tex.  491,  86  A.  D.  643;  Houston  v.  Killough,  80  Tex.  296 
(semble).  And  see  8  Current  Law,  616. 

64  In  re  Christensen,  17  Utah,  412,  70  A.  S.  R.  794. 

55  UNITED  STATES:  Florentine  v.  Barton,  2  Wall.  210;  Sprague  v. 
Litherberry,  4  McLean,  442,  Fed.  Gas.  No.  13,251;  Galpin  v.  Page,  18 
Wall.  350;  Foster  v.  Givens,  31  U.  S.  App.  626;  Applegate  v.  L.  &  C.  C. 
Min.  Co.,  117  U.  S.  255. 

ALABAMA:     Weaver  v.  Brown,  87  Ala.  533. 

CALIFORNIA:  Sichler  v.  Look,  93  Cal.  600;  Eichhoff  v.  Eichhoff,  107 
Cal.  42,  48  A.  S.  R.  110;  In  re  Eichhoff's  Estate,  101  Cal.  600;  Hahn  v. 
Kelly,  34  Cal.  391,  94  A.  D.  742. 


100  LAW   OF   EVIDENCE.  §   27a 

ment,  based  on  the  appearance  of  an  attorney,  that  he  was 
authorized  to  appear,  even  where  there  was  no  service  of  pro- 
cess.56 And  if  the  filing  of  an  affidavit  by  the  plaintiff  is  a 
prerequisite  to  an  order  for  the  publication  of  summons,  and 

CONNECTICUT:     Colt  v.  Haven,  30  Conn.  190,  79  A.  D.  244. 

GEOBGIA:  Doe  d.  Bush  v.  Lindsey,  24  Ga.  245,  71  A.  D.  117;  Reinhart 
v.  Blackshear,  105  Ga.  799. 

ILLINOIS:  Wenner  v.  Thornton,  98  111.  156;  Kenney  v.  Greer,  13  III. 
432,  54  A.  D.  439;  Swearengen  v.  Gulick,  67  111.  208;  Logan  v.  Williams, 
76  111.  175;  Nickrans  v.  Wilk,  161  111.  76. 

INDIANA:     Homer  v.  State  Bank,  1  Ind.  130,  48  A.  D.  355. 

KENTUCKY:     Jones  v.  Edwards,  78  Ky.  6. 

MASSACHUSETTS:     Brown  v.  Wood,  17  Mass.  68. 

MICHIGAN:     Palmer  v.  Oakley,  2  Doug.  433,  47  A.  D.  41. 

MINNESOTA:     Stahl  v.  Mitchell,  41  Minn.  325. 

MISSOURI:     Freeman  v.  Thompson,  53  Mo.  183. 

NEW  YORK:  Gridley  v.  St.  Francis  Xavier's  College,  137  N.  Y.  327; 
Foot  v.  Stevens.  17  Wend.  483. 

OHIO:  Reynolds  v.  Stansbury,  20  Ohio,  344,  55  A.  D.  459;  Richards  v. 
Skiff,  8  Ohio  St.  586. 

SOUTH  DAKOTA:     Stoddard  Mfg.  Co.  v.  Mattice,  10  S.  D.  253. 

So  far  as  judgments  in  personam  are  concerned,  it  has  been  held  that 
the  presumption  is  limited  to  judgments  against  persons  within  the  ter- 
ritorial limits  of  the  court.  Galpin  v.  Page,  18  Wall.  (U.  S.)  350; 
Stewart  v.  Anderson,  70  Tex.  588;  Cunningham  v.  Spokane  Hydraulic 
Co.,  18  Wash.  524. 

se  Prince  v.  Griffin,  16  Iowa,  552;  Gemmell  v.  Rice,  13  Minn.  400.  And 
see  Harshey  v.  Blackmarr,  20  Iowa,  161,  89  A.  D.  520;  Reynolds  v. 
Fleming,  30  Kan.  106,  46  A.  R.  86;  Dorsey  v.  Kyle,  30  Md.  512,  96  A. 
D.  617;  Bunton  v.  Lyford,  37  N.  H.  512,  75  A.  D.  144;  Callen  v.  Ellison, 
13  Ohio  St.  446,  82  A.  D.  448;  2  Clark  &  S.  Agency,  1380.  See,  also, 
page  83,  supra. 

In  the  absence  of  evidence  of  want  of  authority,  the  presumption-  ap- 
plies to  foreign  judgments.  Lawrence  v.  Jarvis,  32  111.  304. 

In  a  collateral  proceeding,  the  presumption  is  conclusive.  Carpen- 
tier  v.  Oakland,  30  Cal.  439;  Corbitt  v.  Timmerman,  95  Mich.  581,  35 
A.  S.  R.  586;  Cochran  v.  Thomas,  131  Mo.  258;  Deegan  v.  Deegan,  22 
Nev.  185,  58  A.  S.  R.  742;  Brown  v.  Nichols,  42  N.  Y.  26,  And  see 
Finneran  v.  Leonard,  7  Allen  (Mass.)  54,  83  A.  D.  665;  Callen  v.  El- 
lison, 13  Ohio  St.  446,  82  A.  D.  448.  And  the  presumption  is  conclusive 
in  favor  of  a  purchaser  under  the  judgment,  even  in  a  subsequent  direct 
attack.  Williams  v.  Johnson,  112  N.  C.  424,  34  A.  S.  R.  513. 


§  27a  AUTHORITY   AND   REGULARITY.  1Q1 

the  record  is  silent  on  the  subject,  it  will  be  presumed,  in 
favor  of  the  judgment,  that  the  affidavit  was  duly  filed.67 

If,  however,  a  statute  expressly  requires  the  existence  of  a 
jurisdictional  fact  affirmatively  to  appear,  its  existence  can- 
not be  presumed.58  The  common  illustration  of  this  exception 
arises  under  statutes  allowing  service  of  initial  process  by 
publication  as  a  substitute  for  personal  service.  In  such  cases, 
it  has  been  held,  all  the  statutory  prerequisites  must  appear 
of  record.69 

The  presumption  of  jurisdiction  arises  in  favor  of  the  judg- 
ments of  courts  of  superior  jurisdiction  only,  and  not  in  favor 
of  the  acts  of  courts  whose  jurisdiction  is  inferior.60  The  dis- 

57  Hahn  v.  Kelly,  34  Cal.  391,  94  A.  D.  742;  Newcomb's  Ex'rs  v.  New- 
comb,  13  Bush  (Ky.)  544,  26  A.  R.  222;  Adams  v.  Cowles,  95  Mo.  501,  6 

A.  S.  R.  74. 

ss  Cooper  v.  Sunderland,  3  Iowa,  114,  66  A.  D.  52;  Shenandoah  V.  R. 
Co.  v.  Ashby's  Trustees,  86  Va.  232,  19  A.  S.  R.  898. 

59McMinn  v.  Whelan,  27  Cal.  300;  Frybarger  v.  McMillen,  15  Colo. 
349;  Brownfield  v.  Dyer,  7  Bush  (Ky.)  505;  Palmer  v.  McMaster,  8 
Mont.  186;  Denning  v.  Corwin,  11  Wend.  (N.  Y.)  647;  Spillman  v.  Wil- 
liams, 91  N.  C.  483.  And  see  Boyland  v.  Boyland,  18  111.  551. 

oo  ENGLAND:     Peacock  v.  Bell,  1  Saund.   73;   Reg.  v.  Totness,  11  Q. 

B.  80. 

UNITED  STATES:  Kempe's  Lessee  v.  Kennedy,  5  Cranch,  173;  Galpin 
v.  Page,  18  Wall.  350. 

CALIFORNIA:       Hahn  v.  Kelly,  34  Cal.  391,  94  A.  D.  742. 

CONNECTICUT:  Hall  v.  Howd,  10  Conn.  514.  27  A.  D.  696;  Coit  v. 
Haven,  30  Conn.  190,  79  A.  D.  244. 

FLORIDA:     McGehee  v.  Wilkins,  31  Fla.  86. 

ILLINOIS:  Anderson  v.  Gray,  134  111.  550,  23  A.  S.  R.  696;  Swearen 
gen  v.  Gulick,  67  111.  208. 

IOWA:     Cooper  v.  Sunderland,  3  Iowa,  114,  66  A.  D.  52. 

KENTUCKY:     Adams  v.  Tiernan,  5  Dana,  394. 

MARYLAND:     Shivers  v.  Wilson,  5  Har.  &  J.  130,  9  A.  D.  497. 

MASSACHUSETTS:     Piper  v.  Pearson,  2  Gray,  120,  61  A.  D.  438. 

MICHIGAN:     Palmer  v.  Oakley,  2  Doug.  433,  47  A.  D.  41. 

NEW  HAMPSHIRE:     Goulding  v.  Clark,  34  N.  H.  148. 

NEW  JERSEY:     Graham  v.  Whitely,  26  N.  J.  Law,  254,  262. 


102  LAW    OF   EVIDENCE.  27a 

trict  and  circuit  courts  of  the  United  States61  and  courts  of 
probate62  are  courts  of  superior  jurisdiction,  within  the  mean- 
ing1 of  this  rule,  while  justices  of  the  peace  are  generally 
courts  of  inferior  jurisdiction.03 

NEW  YORK:     Gilbert  v.  York,  111  N.  Y.  544. 

OHIO:     Reynolds  v.  Stansbury,  20  Ohio,  344,  55  A.  D.  459. 

TENNESSEE:     Hopper  v.  Fisher^  2  Head,  253. 

TEXAS:     Horan  v.  Wahrenberger,  9  Tex.  313,  58  A.  D.  145. 

eiEvers  v.  Watson,  156  U.  S.  527;  Erwin  v.  Lowry,  7  How.  (U.  S.) 
172;  Stanley's  Adm'r  v.  Bank  of  N.  A.,  4  Ball.  (U.  S.)  8;  Byers  v. 
Fowler,  12  Ark.  218,  54  A.  D.  271;  Thorns  v.  Southard,  2  Dana  (Ky.) 
475,  26  A.  D.  467;  Pierro  v.  St.  P.  &  N.  P.  R.  Co.,  37  Minn.  314;  Good- 
sell  v.  Delta  &  P.  L.  Co.,  72  Miss.  580;  Reed  v.  Vaughan,  15  Mo.  137, 
55  A.  D.  133;  Ruckman  v.  Cowell,  1  N.  Y.  505.  Contra,  Kempe's  Lessee 
v.  Kennedy,  5  Cranch  (U.  S.)  173,  185  (semble);  Lowry  v.  Erwin,  6 
Rob.  (La.)  192,  39  A.  D.  556. 

62  ALABAMA:  Henley  v.  Johnston,  134  Ala.  646,  92  A.  S.  R.  48;  Wyatt's 
Adm'r  v.  Steele,  26  Ala.  639. 

ARKANSAS:     Apel  v.  Kelsey,  52  Ark.  341,  20  A.  S.  R.  183. 

CALIFORNIA:  Irwin  v.  Scriber,  18  Cal.  499;  Hahn  v.  Kelly,  34  Cal. 
391,  94  A.  D.  742  (statute). 

GEORGIA:  Gamble  v.  Cent.  R.  &  B.  Co.,  80  Ga.  595,  12  A.  S.  R.  276; 
Tucker  v.  Harris,  13  Ga.  1,  58  A.  D.  488;  Doe  d.  Bush  v.  Lindsey,  24 
Ga.  245,  71  A.  D.  117. 

ILLINOIS:     People  v.  Medart,  166  111.  348;  People  v.  Cole,  84  111.  327. 

KENTUCKY:     Fletcher's  Adm'r  v.  Sanders,  7  Dana,  345,  32  A.  D.  96. 

MINNESOTA:     Davis  v.  Hudson,  29  Minn.  27. 

MISSOURI:  Price  v.  Springfield  R.  E.  Ass'n,  101  Mo.  107,  20  A.  S.  R. 
595;  Sherwood  v.  Baker,  105  Mo.  472,  24  A.  S.  R.  399. 

NEW  HAMPSHIRE:     Kimball  v.  Fisk,  39  N.  H.  110,  75  A.  D.  213. 

PENNSYLVANIA:     Wall  v.  Wall,  123  Pa.  545,  10  A.  S.  R.  549. 

TENNESSEE:  Townsend  v.  Townsend,  4  Cold.  70,  94  A.  D.  184;  Brien 
v.  Hart,  6  Humph.  130. 

TEXAS:  Lyne  v.  Sanford,  82  Tex.  58,  27  A.  S.  R.  852;  Weems  v.  Ma? 
terson,  80  Tex.  45;  Murchison  v.  White,  54  Tex.  78. 

And  see  Redmond  v.  Anderson,  18  Ark.  449;  Roderigas  v.  E.  R.  Sav. 
Inst.,  63  N.  Y.  460,  20  A.  R.  555;  Schultz  v.  Schultz,  10  Grat.  (Va.)  358, 
60  A.  D.  335;  Jackson  v.  Astor,  1  Pin.  (Wis.)  137,  39  A.  D.  281. 

es  Rex  v.  Parish  of  All  Saints,  7  Barn.  &  C.  785;  Levy  v.  Shurman, 
6  Ark.  182,  42  A.  D.  690;  Rowley  v.  Howard,  23  Cal.  401;  Hahn  v. 
Kelly,  34  Cal.  391,  94  A.  D.  742;  Swain  v.  Chase,  12  Cal.  283;  Evans 
v.  Bouton,  85  111.  579;  Hopper  v.  Lucas,  86  Ind.  43,  46;  Smith  v.  Claus- 


§  27a  AUTHORITY   AND   REGULARITY  103 

Moreover,  in  some  jurisdictions,  the  presumption  of  jurisdic- 
tion applies  in  favor  of  superior  courts  only  when  they  have 
acted  as  such.  It  does  not  arise  with  reference  to  statutory 
proceedings  which  run  contrary  to  the  course  of  the  common 
law.  In  the  exercise  of  special  powers  conferred  on  them  by 
statute,  the  courts  are  treated  as  of  inferior  jurisdiction.  Ac- 
cordingly, when  these  proceedings  are  relied  on  to  sustain  a 
judgment,  the  jurisdictional  facts  must  appear  of  record;  they 
cannot  be  presumed.64  Thus,  in  some  states,  the  presumption 
does  not  apply  in  favor  of  judgments  and  decrees  of  probate 

meier,  136  Ind.  105,  43  A.  S.  R.  311;  Inman  v.  Whiting,  70  Me.  445; 
Fahey  v.  Mottu,  67  Md.  250;  Com.  v.  Fay,  126  Mass.  235;  Piper  v.  Pear- 
son, 2  Gray  (Mass.)  120,  61  A.  D.  438;  Gadsby  v.  Stimer,  79  Mich.  260; 
Spear  v.  Carter,  1  Mich.  19,  48  A.  D.  688;  Victor  Mill  &  Min.  Co.  v. 
Justice  Ct,  18  Nev.  21;  McDonald  v.  Prescott,  2  Nev.  109,  90  A.  D.  517. 
Contra,  Heck  v.  Martin,  75  Tex.  469,  16  A.  S.  R.  915;  Williams  v.  Ball, 
51  Tex.  603,  36  A.  R.  730;  Wright  v.  Hazen,  24  Vt.  143.  And  see  Fox 
v.  Hoyt,  12  Conn.  491,  31  A.  D.  760;  Stevens  v.  Mangum,  27  Miss.  481; 
Bernhardt  v.  Brown,  118  N.  C.  700,  36  L.  R.  A.  402. 

If  an  entry  of  judgment  by  a  justice  of  the  peace  is  capable  of  two 
constructions,  the  judgment  being  within  his  jurisdiction  upon  one  con- 
struction, and  beyond  his  jurisdiction  upon  the  other,  the  court  will 
presume  that  he  acted  rightfully.  Bumpus  v.  Fisher,  21  Tex.  561. 

«*Galpin  v.  Page,  18  Wall.  (U.  S.)  350;  Tolmie's  Lessee  v.  Thomp- 
son, 3  Cranch,  C.  C.  123,  Fed.  Gas.  No.  14,080;  Gunn  v.  Howell,  27  Ala. 
663,  62  A,  D.  785;  Foster  v.  Glazener,  27  Ala.  391;  Shivers  v.  Wilson,  5 
Har.  &  J.  (Md.)  130,  9  A.  D.  497;  Ullman  v.  Lion,  8  Minn.  381,  83  A. 
D.  783;  Carleton  v.  Wash.  Ins.  Co.,  35  N.  H.  162,  167;  Warren  v.  Union 
Bank,  157  N.  Y.  259,  43  L.  R.  A.  256;  Furgeson  v.  Jones,  17  Or.  204, 
11  A.  S.  R.  808  (semble) ;  Northcut  v.  Lemery,  8  Or.  316.  See  page  89, 
supra,  as  to  tax  proceedings. 

This  is  true  in  some  states,  where  the  statutory  powers  are  exer- 
cised ministerially,  not  judicially,  and  only  then.  Brown  v.  Wheelock, 
75  Tex.  385;  Pulaski  County  v.  Stuart,  28  Grat.  (Va.)  872. 

The  fact  that  the  statute  has  regulated  the  mode  of  procedure  does 
not  convert  the  proceeding  into  one  of  special  statutory  character,  if 
the  proceeding  is  one  which  the  courts  have  ever  entertained  either  at 
law  or  in  equity  in  the  exercise  of  their  superior  jurisdiction.  Bush 
v.  Hanson,  70  111.  480;  Ames  v.  Williams,  72  Miss.  760. 


104  LAW   OF   EVIDENCE.  §  27a 

courts  passed  in  the  exercise  of  special  statutory  powers,05  as 
where,  for  example,  the  court  orders  a  sale  of  a  decedent's  real 
estate.66 

The  presumption  of  jurisdiction  applies  in  favor  of  the 
courts  of  a  sister  state,67  as  well  as  in  favor  of  domestic 
judgments,  and  also  in  favor  of  colonial  and  foreign  courts;68 

65  Sears  v.  Terry,  26  Conn.  273;  Overseers  of  the  Poor  v.  Gullifer,  49 
Me.  360,  77  A.  D.  265;  Holden  v.  Scanlin,  30  Vt.  177. 

ee  Goodwin  v.  Sims,  86  Ala.  102,  11  A.  S.  R.  21;  Wilson  v.  Holt,  83 
Ala.-  528,  3  A.  S.  R.  768;  Root  v.  McFerrin,  37  Miss.  17,  75  A.  D.  49; 
Martin  v.  Williams,  42  Miss.  210,  97  A.  D.  456;  Strouse  v.  Drennan,  41 
Mo.  289. 

67  ALABAMA:     Hassell  v.  Hamilton,  33  Ala.  280,  283. 

ABKANSAS:     Nunn  v.  Sturges,  22  Ark.  389. 

COLORADO:     Bruckman  v.  Taussig,  7  Colo.  561. 

ILLINOIS:     Horton  v.  Critchfield,  18  111.  133,  65  A.  D.  701. 

INDIANA:     Bailey  v.  Martin,  119  Ind.  103. 

IOWA:     Coughran  v.  Oilman,  81  Iowa,  442. 

KENTUCKY:     Scott  v.  Coleman,  5  Litt.  349,  15  A.  D.  71. 

LOUISIANA:     Graydon  v.  Justus,  24  La.  Ann.  222. 

MASSACHUSETTS:  McMahon  v.  Eagle  L.  Ass'n,  169  Mass.  539,  61  A. 
S.  R.  306;  Buffum  v.  Stimpson,  5  Allen,  591,  81  A.  D.  767;  Van  Norman 
v.  Gordon,  172  Mass.  576,  70  A.  S.  R.  304. 

MICHIGAN:     Wilcox  v.  Kassick,  2  Mich.  165. 

MISSOURI:     Robertson  v.  Staed,  135  Mo.  135,  58  A.  S.  R.  569,  575. 

NEW  HAMPSHIRE:     Rogers  v.  Odell,  39  N.  H.  452. 

NEW  YORK:  Pringle  v.  Woolworth,  90  N.  Y.  502;  Shumway  v.  Still- 
man,  4  Cow.  292,  15  A.  D.  374. 

PENNSYLVANIA:     Mink  v.  Shaffer,  124  Pa.  280. 

SOUTH  CAROLINA:     Coskery  v.  Wood,  52  S.  C.  516. 

TEXAS:  Reid  v.  Boyd,  13  Tex.  241,  65  A.  D.  61;  Harper  v.  Nichol,  13 
Tex.  151. 

WASHINGTON:     Ritchie  v.  Carpenter,  2  Wash.  512,  26  A.  S.  R.  877. 

WEST  VIRGINIA  :     Stewart  v.  Stewart,  27  W.  Va.  167. 

And  see  Butcher  v.  Brownsville  Bank,  2  Kan.  70,  83  A.  D.  446;  Kunze 
v.  Kunze,  94  Wis.  54,  59  A.  S.  R.  857.  See,  however,  Ashley  v.  Laird, 
14  Ind.  222,  77  A.  D.  67;  Hockaday  v.  Skeggs,  18  La.  Ann.  681;  Pelton 
y.  Platner,  13  Ohio,  209,  42  A.  D.  197. 

This  presumption  does  not  arise  in  favor  of  judgments  of  foreign 
courts  of  inferior  jurisdiction.  Mills  v.  Stewart,  12  Ala.  90;  Grant  v. 
Bledsoe,  20  Tex.  456.  Nor  does  it  apply  where  the  jurisdiction,  if  it  ex- 


§  27a  AUTHORITY   AND   REGULARITY.  1Q5 

and  as  to  these,  the  presumption  applies  in  favor  of  the  power 
to  act,  as  well  as  in  favor  of  the  existence  of  the  jurisdictional 
fact  calling  that  power  into  operation.69 

In  the  nature  of  the  case,  this  presumption  arises  only  when 
the  facts  relating  to  jurisdiction  do  not  appear  of  record, 
since,  if  the  facts  appear,  there  is  no  room  for  a  presumption.70 
Accordingly,  if  the  record  affirmatively  shows  that  the  court 
did  not  acquire  jurisdiction,  the  presumption  does  not  obtain, 
and  the  judgment  is  void.71  And  if  the  record  shows  that  cer- 

isted,  must  have  been  conferred  on  the  foreign  court  by  statute.  Kel- 
ley  v.  Kelley,  161  Mass.  Ill,  42  A.  S.  R.  389;  Com.  v.  Blood,  97  Mass. 
538.  Nor  where  it  appears  from  the  record  that  the  defendant  was  a 
nonresident,  and  it  does  not  appear  affirmatively  that  service  of  pro- 
cess was  made  upon  him  in  that  state.  Rand  v.  Hanson,  154  Mass.  87, 
26  A.  S.  R.  210. 

The  presumption  is  that  a  foreign  court  of  record  is  a  court  of  su- 
perior jurisdiction.  Van  Norman  v.  Gordon,  172  Mass.  576,  70  A.  S. 
R.  304;  Ritchie  v.  Carpenter,  2  Wash.  512,  26  A.  S.  R.  877;  Stewart  v. 
Stewart,  27  W.  Va.  167.  A  circuit  court  of  a  sister  state  is  presumed 
to  be  one  of  superior  jurisdiction.  Nicholas  v.  Parwell,  24  Neb.  180. 

Jurisdiction,  once  acquired,  is  presumed  to  have  continued  until  final 
judgment.  Lockhart  v.  Locke,  42  Ark.  17. 

esBrenan's  Case,  10  Q.  B.  492;  Robertson  v.  Struth,  5  Q.  B.  941; 
Snell  v.  Faussatt,  1  Wash.  C.  C.  271,  Fed.  Cas.  No.  13,138;  Bruckman 
v.  Taussig,  7  Colo.  561;  McNair  v.  Hunt,  5  Mo.  301. 

69  Van  Matre  v.  Sankey,  148  111.  536,  39  A.  S.  R.  196;  Dodge  v.  Coffin, 
15  Kan.  277;  Coskery  -v.  Wood,  52  S.  C.  516.  See,  also,  Tremblay  v. 
Aetna  L.  Ins.  Co.,  97  Me.  547,  94  A.  S.  R.  521;  Van  Norman  v.  Gordon, 
172  Mass.  576,  70  A.  S.  R.  304.  Contra,  Coit  v.  Haven,  30  Conn.  190,  79 
A.  D.  244  (semble);  Robertson  v.  Staed,  135  Mo.  135,  58  A.  S.  R.  569. 

TO  Eichhoff's  Estate,  101  Cal.  600. 

TI  Newman  v.  Crowls,  23  U.  S.  App.  89;  Arroyo  D.  &  W.  Co.  v.  Su- 
perior Ct.,  92  Cal.  47,  27  A.  S.  R.  91;  Whitwell  v.  Barbier,  7  Cal.  54; 
Frybarger  v.  McMillen,  15  Colo.  349;  Coit  v.  Haven,  30  Conn.  190,  79 
A.  D.  244;  Swearengen  v.  Gulick,  67  111.  208;  Cox  v.  Matthews,  17 
Ind.  367;  Shaefer  v.  Gates,  2  B.  Mon.  (Ky.)  453,  38  A.  D.  164;  Spill- 
man  v.  Williams,  91  N.  C.  483;  Northcut  v.  Lemery,  8  Or.  316;  Fur- 
geson  v.  Jones,  17  Or.  204,  11  A.  S.  R.  808;  Wall  v.  Wall,  123  Pa.  545, 
10  A.  S.  R.  549;  Withers  v.  Patterson,  27  Tex.  491,  86  A.  D.  643;  Wash. 
A.  &  G.  R.  Co.  v.  A.  &  W.  R.  Co.,  19  Grat.  (Va.)  592,  100  A.  D.  710. 


106  LAW    OF   EVIDENCE.  §   27a 

tain  steps  were  taken  with  reference  to  a  jurisdictional  fact, 
and  these  are  not  sufficient  to  show  jurisdiction,  it  will  not  be 
presumed,  in  favor  of  the  judgment,  that  other  or  further  steps 
were  taken.72 

The  presumption  of  the  existence  of  jurisdictional  facts 
arises  only  in  cases  where  the  judgment  is  attacked  collaterally 
or  indirectly, — that  is,  in  a  proceeding  other  than  that  in 
which  the  judgment  is  rendered.73 

The  presumption  is  more  readily  indulged,  it  seems,  after 
long  lapse  of  time  ;74  and  it  arises  as  well  where  the  record  is 

72Galpin  v.  Page,  18  Wall.  (U.  S.)  350;  Settlemier  v.  Sullivan,  97 
U.  S.  444;  Latta  v.  Tutton,  122  Gal.  279.  68  A.  S.  R.  30;  Hahn  v.  Kelly, 
34  Cal.  391,  94  A.  D.  742;  Hobby  v.  Bunch,  83  Ga.  1,  20  A.  S.  R.  301; 
Clark  v.  Thompson,  47  111.  25,  95  A.  D.  457;  Swearengen  v.  Gulick,  67 
111.  208;  Hathaway  v.  Clark,  5  Pick.  (Mass.)  490;  Barber  v.  Morris,  37 
Minn.  194,  5  A.  S.  R.  836;  Godfrey  v.  Valentine,  39  Minn.  336,  12  A.  S. 
R.  657;  Hering  v.  Chambers,  103  Pa.  172,  175. 

If,  however,  the  record  recites  the  existence  of  a  certain  jurisdic- 
tional fact,  as  of  service  of  process,  either  personally  or  by  publica- 
tion, the  fact  that  papers  in  the  cause  relating  to  the  jurisdictional 
fact,  but  not  properly  a  part  of  the  record,  such,  for  instance,  as  the 
affidavit  of  service,  are  defective,  does  not  overcome  the  recital,  if  it  is 
possible  that  the  defect  might  have  been  cured  by  other  or  further 
proceedings.  Reedy  v.  Camfleld,  159  111.  254;  Moore  v.  Neil,  39  111.  256, 
89  A.  D.  303;  Sears  v.  Sears,  95  Ky.  173,  44  A.  S.  R.  213;  Bustard  v. 
Gates,  4  Dana  (Ky.)  429;  Maples  v.  Mackey,  89  N.  Y.  146;  Callen  v. 
Ellison,  13  Ohio  St.  446,  82  A.  D.  448;  Hardy  v.  Beaty,  84  Tex.  562,  31 
A.  S.  R.  80;  In  re  Amy's  Estate,  12  Utah,  278;  State  v.  Superior  Ct., 
19  Wash.  128,  67  A.  S.  R.  724;  Rogers  v.  Miller,  13  Wash.  82,  52  A.  S/ 
R.  20. 

73  Eichhoff  v.  Eichhoff,  107  Cal.  42,  48  A.  S.  R.  110;  Sichler  v.  Look, 
93   Cal.   600;    Swearengen  v.   Gulick,   67    111.   208.     And   see   Haupt  v. 
Simington,  27  Mont.  480,  94  A.  S.  R.  839. 

The  presumption  does  not  avail  as  an  absolute  conclusion  against 
a  party  offering,  in  an  independent  proceeding,  to  show  facts  impeach- 
ing the  court's  jurisdiction.  Mullins  v.  Rieger,  169  Mo.  521,  92  A.  S. 
R.  651. 

74  Florentine  v.  Barton,  2  Wall.  (U.  S.)  210;  Sprague  v.  Litherberry, 
4  McLean,  442,  Fed.  Cas.  No.  13,251;   Nickrans  v.  Wilk,  161  111.  76; 
Bustard  v.  Gates,  4  Dana  (Ky.)  429. 


§  27b  AUTHORITY   AND   REGULARITY.  1Q7 

lost  and  proved  by  secondary  evidence  as  where  the  record 
itself  is  introduced.75 

(b)  Regularity  of  subsequent  proceedings.  Once  the  court 
has  gained  jurisdiction  of  the  subject-matter  and  of  the  par- 
ties, the  presumption  of  regularity  attaches  to  every  subse- 
quent act  and  proceeding  in  the  case  up  to  and  including  the 
final  judgment  or  decree,  unless  the  record  shows  the  con- 
trary.76 This  presumption,  unlike  the  presumption  of  juris- 
diction, applies  as  well  to  courts  of  inferior  jurisdiction  as  to 

T5  Warfield's  Will,  22  Cal.  51,  83  A.  D.  49. 

"Cosset  v.  Howard,  10  Q.  B.  411,  459;  Voorhees  v.  Jackson,  10  Pet. 
(U.  S.)  449;  Lathi-op  v.  Stuart,  5  McLean,  167,  Fed.  Gas.  No.  8,113; 
Drake  v.  Duvenick,  45  Cal.  455;  Tucker  v.  Harris,  13  Ga.  1,  58  A.  D. 
488;  Cannon  v.  Cooper,  39  Miss.  784,  80  A.  D.  101;  McDonald  v.  Frost, 
99  Mo.  44;  Morrison  v.  Woolson,  29  N.  H.  510;  Carter  v.  Jones,  40  N. 
C.  (5  Ired.  Eq.)  196,  49  A.  D.  425;  Lyon  v.  McDonald.  78  Tex.  71,  9 
L.  R.  A.  295;  Merritt  v.  Baldwin,  6  Wis.  439. 

Proper  filing  of  affidavit  in  attachment  presumed.  Beebe  v.  Mnrrell, 
76  Mich.  114,  15  A.  S.  R.  288.  Regularity  of  selection  of  grand  jurv  nm- 
sumed.  Conner  v.  State,  4  Yerg.  (Tenn.)  137,  26  A.  D.  217.  Oualiflr.*- 
tion  of  jurors  presumed.  Leonard  v.  Sparks,  117  Mo.  103,  38  A.  S.  R. 
646.  Entry  of  plaintiff's  death  presumed  a  mistake.  Falkner  v.  Chris- 
tian's Adm'r,  51  Ala.  495.  Regularity  of  depositions  presumed.  Good- 
win v.  Sims,  86  Ala.  102,  11  A.  S.  R.  21.  Examination  of  title  by  court 
before  decree  of  partition  presumed.  Cummisky  v.  Cummisky,  109  Pa. 
1.  Evidence  presumed  to  support  finding.  Hilton  v.  Bachman,  24  Neb. 
490.  Proper  entry  of  judgment  presumed.  Slicer  v.  Pittsburg  Bank,  16 
How.  (U.  S.)  571;  Bunker  v.  Rand,  19  Wis.  253.  Regularity  of  judg- 
ment by  default  presumed.  Fogg  v.  Gibbs,  8  Baxt.  (Tenn.)  464.  Proper 
issuance  of  execution  presumed.  Sachse  v.  Clingingsmith,  97  Mo.  406. 
Regularity  of  supplementary  proceedings  presumed.  Wright  v.  Nos- 
trand,  94  N.  Y.  31.  Receipt  and  confirmation  of  report  of  jury  finding 
lunacy  presumed.  Sims  v.  Sims,  121  N.  C.  297,  40  L.  R.  A.  737.  Ab- 
sence of  attesting  witness  to  will  presumed  to  have  been  accounted  for. 
Brown  v.  Wood,  17  Mass.  68.  Notice  of  audit  of  claims  against  estate 
presumed.  'Lex's  Appeal,  97  Pa.  289,  293.  Notice  of  administrator's 
sale  presumed.  Gibson  v.  Foster,  2  La.  Ann.  503.  Notice  of  account- 
ing by  executor  presumed.  Crew  v.  Pratt,  119  Cal.  139. 

The  presumption  applies  to  foreign  proceedings  resulting  in  a  judg- 
ment. Sanford  v.  Sanford,  28  Conn.  6;  Dodge  v.  Coffin,  15  Kan.  277. 


108  LAW   OF   EVIDENCE.  §  28a 

rourts  whose  jurisdiction  is  superior.77  It  applies  even  to  the 
proceedings  of  arbitrators.78 

Lapse  of  time  adds  to  the  strength  of  the  presumption  in 
favor  of  the  regularity  of  judicial  proceedings.79 

The  presumption  applies  only  between  the  parties  to  the 
original  suit  or  their  privies,  and  not  between  strangers,  or  one 
party  and  a  stranger.80 

The  presumptions  here  considered  are  those  arising  when 
the  judgment  is  attacked  collaterally.  Analogous  presump- 
tions are  oftentimes  indulged  in  the  same  proceeding,  it  is 
true,  as  in  proceedings  for  review,  but  these  do  not  take  the 
place  of  evidence,  in  the  proper  sense  of  the  word,  and  they 
are  therefore  beyond  the  scope  of  the  present  discussion. 

§  28.    Corporations. 

(a)  Grant  and  acceptance  of  charter — Organization — Con- 
solidation. If  an  association  has  exercised  corporate  powers 
for  a  long  period  of  time  under  a  claim  of  corporate  existence, 
the  grant  of  a  charter  will  be  presumed,  in  the  absence  of  evi- 
dence to  the  contrary.81  Incorporation  will  not  be  presumed, 

77  Cooper  v.  Sunderland,  3  Iowa,  114,  66  A.  D.  52;   Com.  v.  Bolkom, 
3  Pick.    (Mass.)   281;    Stevens  v.  Mangum,  27  Miss.  481;   Root  v.  Me- 
Ferrin,  37  Miss.  17,  75  A.  D.  49;   Sherwood  v.  Baker,  105  Mo.  472,  24 
A.  S.  R.  399;  Den  d.  Vanderveere  v.  Gaston,  25  N.  J.  Law,  615. 

Justices  of  the  peace.  Hopper  v.  Lucas,  86  Ind.  43,  46;  Tharp  v. 
Com.,  3  Mete.  (Ky.)  411. 

The  rule  is  the  same  in  regard  to  inferior  foreign  courts.  State  v. 
Hinchman,  27  Pa.  479. 

78  strong  v.  Strong,  9  Gush.  (Mass.)  560;   Parsons  v.  Aldrich,  6  N. 
H.  264;    Browning  v.  Wheeler,  24  Wend.    (N.  Y.)    258,  35  A.   D.  617: 
Lamphire  v.  Cowan,  39  Vt.  420;   Dolph  v.  Clemens,  4  Wis.  181. 

79  Wilson  v.  Holt,  83  Ala.  528,  3  A.  S.  R.  768;  Wiggins  v.  Gillette.  93 
Ga.  20,  44  A.  S.  R.  123. 

so  Seechrist  v.  Baskin,  7  Watts  &  S.  (Pa.)  403,  42  A.  D.  251. 
si!  Clark  &  M.  Priv.  Corp.  §§  37 (c),  63;  Kingston  upon  Hull  v.  Hor- 
ner,  Cowp.  102;  U.  S.  v.  Amedy,  11  Wheat.  (U.  S.)  392;  Greene  v.  Den- 


g   28a  AUTHORITY    AND   REGULARITY.  1Q9 

however,  from  acts  or  from  a  mode  of  conducting  business 
which  might  as  well  have  been  done  or  adopted  by  an  unin- 
corporated association  as  by  a  corporation.82  As  to  whether 
the  use  of  a  name  which  ordinarily  imports  a  corporate  exist- 
ence raises  a  presumption  that  the  company  using  it  is  an 
incorporated  association,  the  courts  are  in  conflict.83 

In  quo  warranto  proceedings  to  oust  persons  from  the  exer- 
cise of  corporate  powers  on  the  ground  that  they  are  not 
legally  incorporated,  the  burden  is  on  the  defendants  to  show 
legal  incorporation.84  If  ouster  is  sought  because  of  an  alleged 
surrender  or  forfeiture  of  corporate  rights,  however,  the  bur- 
den of  proof  is  on  the  relator.85 

in  the  absence  of  evidence  to  the  contrary,  the  presumption 

nis,  6  Conn.  293,  16  A.  D.  58;  Jameson  v.  People,  16  111.  257,  63  A.  D. 
304;  White  v.  State,  69  Ind.  273;  Trott  v.  Warren,  11  Me.  227;  Stock- 
bridge  v.  West  Stockbridge,  12  Mass.  399;  Dillingham  v.  Snow,  3  Mass. 
276,  5  Mass.  547;  People  v.  Maynard,  15  Mich.  463;  Bow  v.  Allenstown, 
34  N.  H.  351,  69  A.  D.  489;  Sasser  v.  State,  13  Ohio,  453;  Methodist 
Episcopal  Soc.  v.  Lake,  51  Vt.  353;  Ricketson  v.  Galligan,  89-Wis.  394. 
Contra,  Griffin  v.  Clinton  Line  Ext.  R.  Co.,  1  West.  Law  Month.  31,  Fed. 
Cas.  No.  5,816. 

821  Clark  &  M.  Priv.  Corp.  §  63;  Clark  v.  Jones,  87  Ala.  474;  Greene 
v.  Dennis,  6  Conn.  293,  16  A.  D.  58;  Duke  v.  Taylor,  37  Fla,  64,  53  A. 
S.  R.  232;  Alden  v.  St.  Peter's  Parish,  158  111.  631,  30  L.  R.  A.  232; 
Fredenburg  v.  Lyon  Lake  M.  E.  Church,  37  Mich.  476;  Abbott  v.  Omaha 
S.  &  R.  Co.,  4  Neb.  416. 

sal  Clark  &  M.  Priv.  Corp.  §§  63,  92(c).  Pro:  Stein  v.  Indianapolis 
Bldg.  Loan  Fund  &  Sav.  Ass'n,  18  Ind.  237,  81  Am.  Dec.  353;  Williams- 
burg  City  F.  Ins.  Co.  v.  Frothingham,  122  Mass.  391;  Stoutimore  v. 
Clark,  70  Mo.  471;  Platte  Valley  Bank  v.  Harding,  1  Neb.  461.  Con:. 
Briggs  v.  McCullough,  36  Cal.  542,  550;  Duke  v.  Taylor,  37  Fla.  64,  53 
A.  S.  R.  232. 

««1  Clark  &  M.  Priv.  Corp.  §  62;  People  v.  Lowden  (Cal.)  8  Pac.  66; 
People  v.  Utica  Ins.  Co.,  15  Johns.  (N.  Y.)  353,  8  A.  D.  243.  And  see 
People  v.  R.  R.  &  L.  E.  R.  Co.,  12  Mich.  389,  395. 

ss  North  &  S.  Rolling  Stock  Co.  v.  People,  147  111.  234,  24  L.  R.  A. 
462;  State  v.  Haskell,  14  Nev.  209;  People  v.  Manhattan  Co.,  9  Wend. 
(N.  Y.)  351. 


110  LAW   OF    EVIDENCE.  §   28a 

is  that  the  corporators  have  accepted  a  charter  granted  to 
them,  if  it  is  beneficial  to  them.86  Acceptance  may  also  be 
presumed  from  organization  under  a  general  law,87  or  from 
user.88 

If  an  association  has  assumed  to  organize  as  a  corporation 
under  a  valid  law,  and  has  exercised  corporate  powers,  it  is 
presumed,  in  the  absence  of  evidence  on  the  subject,  that  all 
conditions  precedent  have  been  complied  with  in  its  organ- 
ization, and  that  it  has  been  legally  incorporated.89 

If  a  company  sues  as  a  corporation,  and  its  incorporation  is 

se  l  Clark  &  M.  Priv.  Corp.  §  66;  Newton  v.  Carbery,  5  Cranch,  C.  C. 
632,  Fed.  Cas.  No.  10,190;  Bangor,  O.  &  M.  R.  Co.  v.  Smith,  47  Me.  34; 
Charles  River  Bridge  v.  Warren  Bridge,  7  Pick.  (Mass.)  344;  San  An- 
tonio v.  Jones,  28  Tex.  19. 

87  1  Clark  &  M.  Priv.  Corp.  §  44 (f) ;  Glyraont  I.  &  E.  Co.  v.  Toler,  80 
Md.  278. 

sal  Clark  &  M.  Priv.  Corp.  §  66;  Rex  v.  Amery,  1  Term  R.  575,  2 
Term  R.  515;  U.  S.  Bank  v.  Dandridge,  12  Wheat.  (U.  S.)  64;  Talla- 
dega  Ins.  Co.  v.  Landers,  43  Ala.  115;  Logan  v.  McAllister,  2  Del.  Ch. 
176;  Penobscot  Boom  Corp.  v.  Lamson,  16  Me.  224,  33  A.  D.  656;  Ham- 
mond v.  Straus,  53  Md.  1;  Russell  v.  McLellan,  14  Pick.  (Mass.)  63; 
Sons  of  Temperance  v.  Brown,  11  Minn.  356;  Perkins  v.  Sanders,  56 
Miss.  733;  Sumrall  v.  Sun  Mut.  Ins.  Co.,  40  Mo.  27;  Woods  v.  Banks, 
14  N.  H.  101;  Taylor  v.  Newberne  Com'rs,  55  N.  C.  (2  Jones  Eq.)  141, 
64  A.  D.  566;  McKay  v.  Beard,  20  S.  C.  156;  Gleaves  v.  Brick  Church 
Turnpike  Co.,  1  Sneed  (Tenn.)  491;  Manchester  Bank  v.  Allen,  11  Vt. 
302. 

8»1  Clark  &  M.  Priv.  Corp.  §  67f;  U.  S.  Bank  v.  Lyman,  1  Blatchf. 
297,  Fed.  Cas.  No.  924,  affirmed  12  How.  (U.  S.)  225;  Duke  v.  Cahawba 
Nav.  Co.,  10  Ala.  82,  44  A.  D.  472;  Memphis  &  St.  F.  Plank  Road  Co.  v. 
Rives,  21  Ark.  302;  Wood  v.  Wiley  Const.  Co.,  56  Conn.  87;  Sweney  v. 
Talcott,  85  Iowa,  103;  Sword  v.  Wickersham,  29  Kan.  746;  Hager's 
Town  Turnpike  Road  Co.  v.  Creeger,  5  Har.  &  J.  (Md.)  122,  9  A.  D. 
495;  Packard  v.  O.  C.  R.  Co.,  168  Mass.  92;  Tar  River  Nav.  Co.  v.  Neal, 
10  N.  C.  (3  Hawks)  520;  Ashtabula  &  N.  L.  R.  Co.  v.  Smith,  15  Ohio 
St.  328;  Nat.  Mut.  F.  Ins.  Co.  v.  Yeomans,  8  R.  I.  25.  86  A.  D.  610; 
Manchester  Bank  v.  Allen,  11  Vt.  302;  Puget  Sound  &  C.  R.  Co.  v. 
Ouellette,  7  Wash.  265;  Attorney  General  v.  C.  &  N.  W.  R.  Co.,  35  Wis. 
425. 


§   28b  AUTHORITY    AND   REGULARITY.  m 

denied,  the  burden  of  proving  corporate  existence  rests  upon 
it.90  So,  if  persons  doing  business  under  a  company  name  are 
sued  individually  as  partners,  and  they  deny  individual  lia- 
bility on  the  ground  that  they  are  incorporated,  and  that  the 
liability  was  incurred  by  the  corporation,  the  burden  is  on 
them  to  prove  incorporation,  or  to  show  an  estoppel  on  the 
plaintiff's  part  to  deny  incorporation.01 

In  the  absence  of  evidence  to  the  contrary,  it  is  presumed 
that  corporations,  in  consolidating  under  statutory  authority, 
have  complied  with  the  requirements  of  the  statute.92 

(b)  Officers — Appointment — Regularity  of  acts.  Persons 
acting  publicly  as  officers  of  a  corporation  are  presumed  to 
be  rightfully  in  office,  in  the  absence  of  evidence  to  the  con- 
trary,93 and  acceptance  of  a  corporate  office  may  also  be  pre- 

»oi  Clark  &  M.  Priv.  Corp.  §  62;NU.  S.  v.  Ainedy,  11  Wheat.  (U.  S.) 
392,  409  (semble) ;  Selma  &  T.  R.  Co.  v.  Tipton,  5  Ala.  787,  39  A.  D. 
344;  Jones  v.  Aspen  Hardware  Co.,  21  Colo.  263,  52  A.  S.  R.  220; 
Society  v.  Young,  2  N.  H.  310;  M.  E.  Union  Church  v.  Pickett,  19  N. 
Y.  482;  U.  S.  Bank  v.  Stearns,  15  Wend.  (N.  Y.)  314;  Calkins  v.  State, 
18  Ohio  St.  366,  98  A.  D.  121;  Lord  v.  Bigelow,  8  Vt.  445. 

»il  Clark  &  M.  Priv.  Corp.  §  62;  Owen  v.  Shepard,  19  U.  S.  App. 
336,  59  Fed.  746;  Clark  v.  Jones,  87  Ala.  474;  Williams  v.  Hewitt,  47 
La.  Ann.  1076,  49  A.  S.  R.  394;  Abbott  v.  Omaha  S.  &  R.  Co.,  4  Neb. 
416. 

The  plaintiff  must  first  make  out  a  prima  facie  case  of  partnership, 
however.  Hallstead  v.  Curtis,  143  Pa.  352,  13  L.  R.  A.  370;  Halstead's 
Appeal,  157  Pa,  59,  22  L.  R.  A.  276. 

»zl  Clark  &  M.  Priv.  Corp.  §  350;  Lewis  v.  Clarendon,  5  Dill.  329, 
Fed.  Cas.  No.  8,320;  Swartwout  v.  Mich.  Air  Line  R.  Co.,  24  Mich.  390. 

»3i  Clark  &  M.  Priv.  Corp.  §  660;  U.  S.  Bank  v.  Dandridge,  12 
Wheat.  (U.  S.)  64,  70;  Selma  &  T.  R.  Co.  v.  Tipton.  5  Ala.  787,  39  A. 
D.  344;  Susquehanna  Bridge  &  B.  Co.  v.  General  Ins.  Co.,  3  Md.  305,  56 
A.  D.  740;  State  v.  Kupferle,  44  Mo.  154,  100  A.  D.  265;  Hilliard  v. 
Goold,  34  N.  H.  230,  66  A.  D.  765;  Lucky  Queen  Min.  Co.  v.  Abraham, 
26  Or.  282. 

Presumption  of  appointment  of  officers  of  municipal  corporation,  see 
S  24,  supra. 

Quo  warranto  against  corporate  officers,  see  note  8,  supra. 


112  LAW   OF   EVIDENCE.  §  28b 

sumed.94  Proceedings  of  stockholders  or  directors  are  pre- 
sumed regular,  in  the  absence  of  evidence  to  the  contrary,  and 
accordingly  when,  acting  under  a  by-law  or  charter  provi- 
sion, they  remove  an  officer,  the  presumption  is  that  they  acted 
on  sufficient  grounds.95 

If  an  act  done  by  a  corporate  officer  is  within  the  apparent 
scope  of  his  authority,  the  presumption  is  that  the  act  was 
authorized  by  all  due  formalities,  and  that  he  performed  it 
regularly.90  This  rule  applies  to  directors.  Accordingly,  in 
the  absence  of  evidence  on  the  subject,  when  any  action  pur- 
ports to  have  been  the  action  of  the  directors,  it  is  presumed 
that  they  acted  at  a  lawful  meeting,  of  which  due  and  suffi- 
cient notice  was  given,  that  a  quorum  was  present,  that  the 
meeting  was  properly  conducted  at  a  proper  place,  and  that 
the  act  in  question  was  the  act  of  the  majority.97 

94  1  Clark  &  M.  Priv.  Corp.  §  660;  Halpin  v.  Mut.  Brew.  Co.,  20  App. 
Div.  (N.  Y.)  583. 

as  l  Clark  &  M.  Priv.  Corp.  §  666;  State  v.  Kupferle,  44  Mo.  154,  100 
A.  D.  265. 

This  presumption  applies  in  favor  of  proceedings  for  the  expulsion  of 
a  member  of  a  religious  or  social  organization,  as  well  as  other  pro- 
ceedings. Shannon  v.  Frost,  3  B.  Mon.  (Ky.)  253,  258;  People  v.  St. 
George's  Soc.,  28  Mich.  261;  Harmon  v.  Dreher,  Speer  Eq.  (S.  C.)  87. 
But  it  does  not  apply  to  proceedings  for  the  forfeiture  of  a  member's 
property  rights.  People  v.  Detroit  F.  Dep't,  31  Mich.  458;  People  v. 
Erie  County  Medical  Soc.,  32  N.  Y.  187. 

96  Where  the  common  seal  of  a  corporation  is  affixed  to  an  instru- 
ment, and  the  signature  of  a  proper  officer  is  proved,  the  seal  is  prima 
facie  evidence  that  it  was  attached  by  proper  authority.  Thorington 
v.  Gould,  59  Ala.  461;  Canandarqua  Academy  v.  McKechnie,  90  N.  Y. 
618.  And  see  Mickey  v.  Stratton,  5  Sawy.  475,  Fed.  Gas.  No.  9,530; 
Wood  v.  Whelen,  93  111.  153. 
•  971  Clark  &  M.  Priv.  Corp.  §§  647,  648(c),  649(f),  681. 

CALIFORNIA:  Stockton  Combined  H.  &  A.  Works  v.  Houser,  10& 
Cal.  1. 

CONNECTICUT:     Chase  v.  Tuttle,  55  Conn.  455,  3  A.  S.  R.  64. 

ILLINOIS:     Cushman  v.  111.  Starch  Co.,  79  111.  281. 

IOWA:     Hardin  v.  Iowa  R.  &  C.  Co.,  78  Iowa,  726,  6  L.  R.  A.  52. 


§  28c  AUTHORITY   AND   REGULARITY.  H3 

(c)  Powers.  When  a  question  arises  as  to  whether  a  par- 
ticular act  or  contract  is  in  excess  of  the  powers  of  a  corpora- 
tion, and  there  might  be  circumstances  under  which  it  would 
be  authorized,  it  is  presumed  to  have  been  authorized,  and  the 
burden  of  showing  the  contrary  rests  on  the  party  who  sets  up 
the  want  of  power.98  Thus,  if  a  corporation  authorized  to  hold 
real  property  under  some  circumstances  or  for  some  purposes 
purchases  and  takes  a  conveyance  of  property,  it  is  presumed 
that  it  did  so  for  an  authorized  purpose,  until  the  contrary  is 
shown."  So,  whenever  the  circumstances  may  have  been  such 

LOUISIANA:  Ross  v.  Crockett,  14  La.  Ann.  811;  Dunn  v.  New  Or- 
leans Bldg.  Co.,  8  La,  483. 

MAINE:  Copp  v.  Lamb,  12  Me.  312;  Brackett  v.  Persons  Unknown, 
53  Me.  228. 

MARYLAND:     Baile  v.  Calvert  College  Educational  Soc.,  47  Md.  117. 

MASSACHUSETTS:  Sargent  v.  Webster,  13  Mete.  497,  46  A.  D.  743; 
Wallace  v.  First  Parish  in  Townsend,  109  Mass.  263. 

MICHIGAN:     Wells  v.  Rodgers,  60  Mich.  525. 

MINNESOTA:     Fletcher  v.  C.,  St.  P.,  M.  &  O.  R.  Co.,  67  Minn.  339. 

MISSOURI:  Chouteau  Ins.  Co.  v.  Holmes'  Adm'r,  68  Mo.  601.  30  A. 
R.  807. 

NEW  HAMPSHIRE:  Despatch  Line  of  Packets  v.  Bellamy  Mfg.  Co.,  12 
N.  H.  205,  37  A.  D.  203  (semble) ;  Cobleigh  v.  Young,  15  N.  H.  493. 

NEW  JERSEY:     Van  Hook  v.  Somerville  Mfg.  Co.,  5  N.  J.  Eq.  137. 

NORTH  CAROLINA:     Benbow  v.  Cook,  115  N.  C.  324,  44  A.  S.  R.  454. 

UTAH:  Singer  v.  Salt  Lake  Copper  Mfg.  Co.,  17  Utah,  143,  70  A.  S. 
R.  773;  Leavitt  v.  Oxford  &  G.  S.  M.  Co.,  3  Utah,  265. 

VERMONT:     McDaniels  v.  Flower  Brook  Mfg.  Co.,  22  Vt.  274. 

See,  however,  Stevens  v.  Taft,  3  Gray  (Mass.)  487. 

981  Clark  &  M.  Priv,  Corp.  §§  128(c)(3),  174;  Scottish  N.  E.  R.  Co. 
v.  Stewart,  3  Macq.  H.  L.  Cas.  382;  Ala.  G.  L.  Ins.  Co.  v.  Cent.  A.  &  M. 
Ass'n,  54  Ala.  73;  International  B.  &  L.  Ass'n  v.  Wall,  153  Ind.  554; 
West  v.  Averill  Grocery  Co.,  109  Iowa,  488;  Harrison  Wire  Co.  v. 
Moore,  55  Mich.  610;  Downing  v.  Mt.  Wash.  Road  Co.,  40  N.  H.  230; 
Ellerman  v.  Chicago  J.  R.  &  U.  S.  Co.,  49  N.  J.  Eq.  217;  De  Groff  v.  Amer- 
ican Linen  Thread  Co.,  21  N.  Y.  127;  Howard  v.  Boorman,  17  Wis.  459. 

»»1  Clark  &  M.  Priv.  Corp.  §  143;  Stockton  Sav.  Bank  v.  Staples,  98 
Cal.  189;  Ky.  Lumber  Co.  v.  Green,  87  Ky.  257;  University  of  Mich.  v. 
Detroit  Young  Men's  Soc.,  12  Mich.  138;  Conn.  Mut.  L.  Ins.  Co.  v.  Smith, 

Hammon,  Ev. — 8. 


114  LAW   OF   EVIDENCE.  §   29 

as  to  authorize  a  conveyance,  lease,  mortgage,  or  pledge  of  its 
property  by  a  corporation,  it  is  presumed,  in  the  absence  of  evi- 
dence to  the  contrary,  that  the  conveyance  was  duly  author- 
ized.100 And  since  corporations  may  acquire  stock  in  other  cor- 
porations for  some  purposes,  it  is  presumed  that  the  taking  of 
stock  in  one  corporation  by  another  was  intra  vires,  unless  the 
contrary  appears.101 

This  rule  applies  to  foreign  corporations.  Accordingly,  in 
the  absence  of  evidence  on  the  subject,  the  presumption  is 
that  a  particular  contract  entered  into  by  a  foreign  corpora- 
tion, and  on  which  an  action  is  brought  by  or  against  it,  is 
within  the  powers  conferred  on  the  company  by  its  charter,102 
unless  the  power  is  one  which  does  not  usually  belong  to  such 
corporations.103 

§  29.    Marriage. 

If  it  appears  that  a  marriage  has  taken  place  in  fact,  a  pre- 
sumption arises  that  all  due  formalities  were  observed  in  en- 

117  Mo.  261,  38  A.  S.  R.  656;  Chautauqu&  County  Bank  v.  Risley,  19 
N.  Y.  369,  75  A.  D.  347;  Mallett  v.  Simpson,  94  N.  C.  37,  55  A.  R.  594. 

In  condemnation  proceedings  by  a  corporation,  however,  the  burden 
is  on  it  to  show  that  it  has  a  right  to  take  property,  and  that  the 
property  in  question  is  necessary  for  its  use.  Alloway  v.  Nashville, 
88  Tenn.  510,  8  L.  R.  A.  123. 

100  i  Clark  &  M.  Priv.  Corp.  §  164;  Mclntire  v.  Preston,  10  111.  48,  48 
A.  D.  321;  Ashley  Wire  Co.  v.  111.  Steel  Co.,  164  111.  149,  56  A.  S.  R.  187; 
University  of  Mich.  v.  Detroit  Young  Men's  Soc.,  12  Mich.  138;  Wood 
v.  Wellington,  30  N.  Y.  218. 

101 1  Clark  &  M.  Priv.  Corp.  §  195;  Evans  v.  Bailey,  66  Gal:  112;  Ryan 
v.  L.,  A.  &  N.  R.  Co.,  21  Kan.  365;  In  re  Rochester,  H.  &  L.  R.  Co.,  110 
N.  Y.  119. 

1021  Clark  &  M.  Priv.  Corp.  §  840;  Boulware  v.  Davis,  90  Ala.  207; 
New  England  Mut.  L.  Ins.  Co.  v.  Hasbrook's  Adm'x,  32  Ind.  447;  Mc- 
Cluer  v.  M.  &  L.  R.,  13  Gray  (Mass.)  124,  74  A.  D.  624;  In  re  Rochester, 
H.  &  L.  R.  Co.,  45  Hun  (N.  Y.)  126;  Yeaton  v.  Eagle  O.  &  R.  Co.,  4 
Wash.  183. 

103  Frye  v.  111.  Bank,  10  111.  332. 


§  29          AUTHORITY  AND  REGULARITY.  H5 

tering  into  it.104  Thus,  it  may  be  presumed  that  the  parties 
had  legal  capacity  to  enter  into  the  marriage  relation,105  that 
they  consented  thereto,106  that  a  license  was  first  procured,107 
and  that  the  person  officiating  had  authority  to  do  so;108  and 
a  foreign  marriage  being  shown,  it  is  presumed  to  be  in  ac- 
cord with  the  lex  loci,  so  that  the  burden  of  showing  the  con- 
trary is  on  the  party  asserting  it.109 

io4Sichel  v.  Lambert,  15  C.  B.  (N.  S.)  781;  Reg.  v.  Cradock,  3  Fost. 
&  F.  837;  Reg.  v.  Mainwaring,  26  Law  J.  M.  Gas.  10;  The  Lauderdale 
Peerage,  10  App.  Cas.  692;  Cartwright  v.  McGown,  121  111.  388,  2  A.  S.  R. 
105;  Botts  v.  Botts,  22  Ky.  L.  R.  212,  56  S.  W.  961;  People  v.  Calder,  30 
Mich.  85;  U.  S.  v.  De  Amador,  6  N.  M.  173;  Thomas  v.  Thomas,  124 
Pa.  646;  Long,  Dom.  Rel.  101.  Presumption  of  marriage,  see  §  58, 
Infra. 

lOBHarrod  v.  Harrod,  1  Kay  &  J.  4;  Jones  v.  Gilbert,  135  111.  27;  U. 
S.  v.  De  Amador,  6  N.  M.  173. 

A  party  to  a  marriage  is  presumed  to  have  been  competent,  even 
though  he  appears  once  to  have  been  insane.  Castor  v.  Davis,  120  Ind. 
231;  Ward  v.  Dulaney,  23  Miss.  410. 

The  presumption  of  competency  is  indulged  in  favor  of  the  marriage 
whose  validity  is  immediately  in  question, — not  against  that  marriage 
and  in  favor  of  a  prior  marriage  between  one  of  the  spouses  and  a 
third  person.  Patterson  v.  Gaines,  6  How.  (U.  S.)  550;  U.  S.  v.  Green, 
98  Fed.  63. 

Presumption  of  death  of  former  spouse  of  one  of  the  parties  to  a 
marriage,  see  §  62 (c),  infra.  Presumption  of  divorce  of  former  spouse, 
see  §  35,  infra. 

io«Hutchins  v.  Kimmell,  31  Mich.  126,  18  A.  R.  164,  167;  Fleming 
v.  People,  27  N.  Y.  329. 

If  an  infant  marries,  it  is  not  presumed  that  his  parent  or  guardian 
assented,  as  required  by  the  English  statute.  Rex  v.  James,  Russ.  & 
R.  17;  Rex  v.  Butler,  Russ.  &  R.  61.  Contra,  Harrison  v.  Southampton 
Corp.,  21  Eng.  Law  &  Eq.  343. 

107  Piers  v.  Piers,  2  H.  L.  Cas.  331. 

The  fact  that  a  marriage  license  has  been  issued  founds  a  presump- 
tion that  all  statutory  requisites  have  been  complied  with.  Noflre  v. 
U.  S.,  164  U.  S.  657. 

108  Pratt  v.  Pierce,  36  Me.  448,  58  A.  D.  758;  Hanon  v.  State,  63  Md. 
123;  Megginson  v.  Megginson,  21  Or.  387,  14  L.  R.  A.  540.    And  see  Pat- 
terson v.  Gaines,  6  How.  (U.  S.)  550. 

loo  Rex  v.  Brampton,  10  East,  282 ;  Blasini  v.  Blasini's  Succession,  30 


116  LAW   OF    EVIDENCE.  §   3Qb 

§  30.     Contracts  and  conveyances. 

(a)  Consideration.     In  the  absence  of  evidence  to  the  con- 
trary, the  presumption  is  that  a  given  contract  is  based  on  a 
sufficient  consideration,  and  the  burden  of  proving  the  con- 
trary, either  as  a  defense  or  as  ground  for  affirmative  relief, 
rests  on  the  party  who  asserts  it.110     Thus,  if  a  shipper  seeks 
to  avoid  a  limitation  of  liability  in  the  contract  of  shipment 
as  having  been  exacted  without  consideration,  he  has  the  bur- 
den of  proving  that  fact.111 

(b)  Execution.     The  presumption  is  that  the  signature  to  a 
document  is  genuine,112  unless  its  genuineness  is  made  an  is- 

La.  Ann.  1388,  1398;  Redgrave  v.  Redgrave,  38  Md.  93;  Jackson  v. 
Jackson,  80  Md.  176;  Hynes  v.  McDermott,  91  N.  Y.  451,  456,  43  A.  R. 
677;  Lanctot  v.  State,  98  Wis.  136. 

Though  the  lex  loci  requires  a  marriage  to  be  entered  into  as  a 
civil  contract  before  a  magistrate,  and  forbids,  under  penalty,  the 
celebration  of  a  religious  ceremony  in  the  absence  of  a  civil  contract, 
yet  proof  that  a  religious  ceremony  was  performed  does  not,  in '  a 
prosecution  for  bigamy,  authorize  a  presumption  that  the  civil  ceremony 
had  been  performed.  Weinberg  v.  State,  25  Wis.  370. 

no  Treat  v.  Orono,  26  Me.  217.  Presumption  of  consideration  for 
negotiable  instruments  and  transfer  .thereof,  see  §  30  (e),  infra. 

Consideration  for  a  specialty  is  sometimes  said  to  be  presumed.  Mc- 
Carty  v.  Beach,  10  Cal.  461;  Northern  Kan.  Town  Co.  v.  Oswald,  18 
Kan.  336;  Page  v.  Trufant,  2  Mass.  159,  162,  3  A.  D.  41;  Wanmaker 
v.  Van  Buskirk,  1  N.  J.  Eq.  685,  23  A.  D.  748;  Douglass  v.  Rowland,  24 
Wend.  (N.  Y.)  35.  At  common  law,  this  is  merely  a  roundabout  way 
of  expressing  the  rule  that  a  specialty  requires  no  consideration,  since, 
in  the  absence  of  statute,  with  few  exceptions,  a  consideration  is  not, 
and  never  was,  either  actually  or  theoretically,  an  element  of  the  spe- 
cialty. Hammon,  Cont.  §  272.  In  many  states  this  rule  has  been 
modified  by  statute,  so  that  a  seal  is  not  conclusive,  but  merely  prima 
facie  evidence  of  a  consideration. 

in  Brown  v.  L.  &  N.  R.  Co.,  36  111.  App.  140;  McMillan  v.  Mich.  So. 
&  N.  I.  R.,  16  Mich.  79,  93  A.  D.  208;  Wehmann  v.  M.,  St.  P.  &  S.  S.  M. 
R.  Co.,  58  Minn.  22,  29  (semble) ;  Schaller  v.  C.  &  N.  W.  R.  Co.,  97  Wis. 
31.  And  see  St.  Louis  &  S.  F.  R.  Co.  v.  Hurst,  67  Ark.  407;  Lancaster 
Mills  v.  Merchants'  Cotton  Press  Co.,  89  Tenn.  1,  24  A.  S.  R.  586. 

112  Ponder  v.  Shumans,  80  Ga.  505. 


§  30b  AUTHORITY   AND   REGULARITY.  H7 

sue,  in  which  case  the  burden  of  proof  rests  on  the  party 
claiming  under  the  instrument.113 

If  a  deed  is  signed  and  acknowledged,  the  execution  is  pre- 
sumed to  be  regular;114  and  the  same  presumption  is  indulged 
where  a  deed  has  been  duly  acknowledged  and  recorded.115 

Where  an  instrument  cannot  be  produced,  as  where  it  is 
lost,  it  is  presumed  to  have  been  in  proper  form,116'110  and  to 
have  been  executed  with  all  due  formality,120  as  that  it  bore 
a  stamp,  if  it  is  of  such  a  nature  that  the  law  required  it  to 
be  stamped.121  So,  if  an  instrument  bears  the  proper  stamp, 
it  is  presumed  that  it  was  affixed  at  the  proper  time,  and  by 
the  proper  party.122  And  if  a  party's  signature  is  proved,  it 
is  presumed  that  a  seal  was  attached.123  If  a  certified  copy 
of  a  recorded  deed  bears  a  scroll  with  the  word  "Seal"  writ- 
ten therein,  the  presumption  is  that  the  original  was  duly 

"3  Green  v.  Maloney,  7  Houst.  (Del.)  22;  Richardson  v.  Fellner,  9 
Okl.  513. 

I"  People  v.  Cogswell,  113  Cal.  129,  35  L.  R.  A.  269. 

115  Warren  v.  Jacksonville,  15  111.  236,  58  A.  D.  610,  615. 

A  patent  which  appears  on  its  face  to  have  been  legally  executed  is 
presumed  to  have  been  executed  by  the  proper  officers.  Parkison  v. 
Bracken,  1  Pin.  (Wis.)  174,  39  A.  D.  296. 

no-no  Burgess  v.  Vreeland,  24  N.  J.  Law,  71,  59  A.  D.  408. 

120  The  fact  that  a  purchase-money  mortgage  was  executed  with  due 
formality  raises  a  presumption  that  the  deed  of  conveyance  contem- 
poraneously made  was  likewise  duly  executed.     Godfrey  v.   Disbrow, 
Walk.  (Mich.)   260. 

121  Hart  v.  Hart,  1  Hare,  1;   Rex  v.  Long  Buckby,  7  East,  45;   Ma- 
rine Inv.  Co.  v.  Haviside,  L.  R.  5  H.  L.  624;  Thayer  v.  Barney,  12  Minn. 
502.    And  see  Collins  v.  Valleau,  79  Iowa,  626;  Grand  v.  Cox,  24  La.  Ann. 
462. 

This  presumption  does  not  arise  if,  when  the  instrument  was  last 
seen,  it  bore  no  stamp.  Arbon  v.  Fussell,  9  Jur.  N.  S.  (pt.  1)  753;  Ma- 
rine Inv.  Co.  v.  Haviside,  L.  R.  5  H.  L.  624. 

122  Iowa  &  M.  R.  Co.  v.  Perkins,  28  Iowa,  281.    And  see  Myers  v.  Mc- 
Graw,  5  W.  Va.  30. 

i23Grellier  v.  Neale,  Peake,  146. 


118  LAW    OF   EVIDENCE.  §  3Qb 

sealed;124  and  a  recital  in  an  acknowledgment  of  a  recorded 
instrument  of  the  attaching  of  a  seal  to  it  by  the  officer  taking 
it  raises  a  presumption  that  the  seal  was  attached,  even  though 
the  record  does  not  show  a  seal.125 

It  is  presumed  that  the  instrument  was  executed  before  the 
subscribing  witnesses  signed.126 

An  instrument  is  presumed  to  have  been  executed  on  the 
day  of  its  date.  In  other  words,  the  date  is  presumed  to  be 
correct.127  This  presumption  may,  however,  be  rebutted.128 

124  Deininger  v.  McConnel,  41  111.  227.    And  see  Hammond  v.  Gordon, 
93  Mo.  223. 

125  Summer  v.  Mitchell,  29  Fla.  179,  30  A.  S.  R.  106. 

126  Hughes  v.  Debnam,  53  N.  C.   (8  Jones)   127;   Pringle  v.  Dunn,  37 
Wis.  449;  Allen  v.  Griffin,  69  Wis.  529. 

127  Sinclair  v.  Baggaley,  4  Mees.  &  W.  312;   Abrams  v.  Pomeroy,  13 
111.  133;  Meldrum  v.  Clark,  Morris  (Iowa)  130;  Toebbe  v.  Williams,  80 
Ky.  661;  Williams  v.  Woods,  16  Md.  220.    And  see  Wyckoff  v.  Remsen, 
11  Paige  (N.  Y.)  564;  Doe  d.  Newlin  v.  Osborne,  49  N.  C.  (4  Jones)  157, 
67  A.  D.  269.    But  see  Butler  v.  Mountgarret,  7  H.  L.  Cas.  633,  646. 

Deed.  Fowler  v.  Merrill,  11  How.  (U.  S.)  375,  393;  Merrill  v.  Daw- 
son,  Hempst.  563,  Fed.  Cas.  No.  9,469;  Briggs  v.  Fleming,  112  Ind.  313; 
Savery  v.  Browning,  18  Iowa,  ^46;  Smith  v.  Porter,  10  Gray  (Mass.) 
66;  Costigan  v.  Gould,  5  Denio  (N.  Y.)  290;  Cover  v.  Manaway,  115  Pa. 
338,  2  A.  S.  R.  552.  Presumption  of  date  of  delivery,  see  page  122, 
infra.  The  presumption  arises  even  where  the  deed  appears  to  have 
been  acknowledged  on  a  later  day.  McFarlane  v.  Louden,  99  Wis.  620, 
67  A.  S.  R.  883.  See,  also,  note  137,  infra.  If  two  deeds  are  dated  and 
acknowledged  on  the  same  day,  and  one  is  recorded  before  the  other, 
the  burden  of  proving  that  the  one  last  recorded  was  the  first  made 
rests  on  the  party  asserting  it.  Woodward  v.  Brown,  119  Cal.  283,  63 
A.  S.  R.  108. 

Legal  process.  Bunker  v.  Shed,  8  Mete.  (Mass.)  150;  Day  v.  Lamb, 
7  Vt.  426. 

Letter.  Potez  v.  Glassop,  2  Exch.  191;  Houliston  v.  Smyth,  2  Car. 
&  P.  22,  24  (semble);  Pullen  v.  Hutchinson,  25  Me.  249.  Date  as  evi- 
dence of  fact  and  time  of  sending  of  letter,  see  note,  20,  supra. 

Negotiable  instrument.  Anderson  v.  Weston,  6  Bing.  N.  C.  296;  Knise- 
ly  v.  Sampson,  100  111.  573;  Pullen  v.  Hutchinson,  25  Me.  249;  Claridge 
v.  Klett.  15  Pa.  255. 


§  30C  AUTHORITY   AND   REGULARITY.  U9 

If  several  instruments  relating  to  one  transaction  bear  the 
same  date,  the  presumption  is  that  they  were  executed  in 
the  order  of  time  necessary  to  give  them  legal  effect,  accord- 
ing to  the  intention  of  the  parties.129 

An  instrument  is  presumed  to  have  been  executed  at  the 
place  where  it  bears  date.180 

(c)  Delivery.  If  an  instrument  regular  on  its  face  is  found 
in  the  hands  of  the  person  whom  it  is  apparently  designed  to 
benefit,  the  presumption  is  that  it  was  duly  delivered.131  This 

Assignment  or  indorsement  of  negotiable  instrument.  Byrd  v.  Tuck- 
er, 3  Ark.  451;  Meadows  v.  Cozart,  76  N.  C.  450.  The  indorsement  of 
a  negotiable  instrument  payable  on  demand  is  presumed  to  have  been 
made  on  the  day  of  its  execution.  Leonard  v.  Olson,  99  Iowa,  162,  61 
A.  S.  R.  230.  See  Anderson  v.  Weston,  6  Bing.  N.  C.  296. 

Receipt.  Malpas  v.  Clements,  19  Law  J.  Q.  B.  435;  Livingston  v. 
Arnoux,  56  N.  Y.  507,  519;  Caldwell  v.  Gamble,  4  Watts  (Pa.)  292. 

There  are  some  exceptions  to  the  rule.  Houliston  v.  Smyth,  2  Car. 
&  P.  22,  24;  Hoare  v.  Coryton,  4  Taunt.  560;  Wright  v.  Lainson,  2  Mees. 
&  W.  739;  Anderson  v.  Weston,  6  Bing.  N.  C.  296,  302.  And  it  has  been 
held  that  the  presumption  will  not  be  applied  against  one  who  is 
neither  a  party  nor  a  privy  to  the  instrument  in  question.  Baker  v. 
Blackburn,  5  Ala.  417. 

izsAbrams  v.  Pomeroy,  13  111.  133;  Scobey  v.  Walker,  114  Ind.  254; 
Smith  v.  Porter,  10  Gray  (Mass.)  66;  Doe  d.  Newlin  v.  Osborne,  49  N. 
C.  (4  Jones)  157,  67  A.  D.  269. 

120  Taylor  v.  Horde,  1  Burrow,  60,  106;  Dudley  v.  Cadwell,  19  Conn. 
218;  Ivy  v.  Yancey,  129  Mo.  501.  See,  also,  page  122,  infra. 

In  the  absence  of  evidence  to  the  contrary,  it  is  presumed  that  a 
warehouseman's  receipt,  and  a  guaranty  indorsed  thereon,  were  execut- 
ed at  the  same  time.  Underwood  v.  Hossack,  38  111.  208. 

130  Taylor  v.  Snyder,  3  Denio  (N.  Y.)  145,  45  A.  D.  457. 

If  nothing  appears  to  the  contrary,  the  presumption  is  that  a  con- 
tract was  made  in  the  state  where  it  is  sued  on.  Baltimore,  O.  &  C. 
R.  Co.  v.  Scholes,  14  Ind.  App.  524,  56  A.  S.  R.  307.  And  it  is  presumed 
that  an  acknowledgment  was  taken  within  the  territorial  limits  of  the 
officer's  Jurisdiction.  People  v.  Snyder,  41  N.  Y.  397. 

131  Boorman  v.  American  Exp.  Co.,  21  Wis.  152.     See  Jones  v.  N.  Y. 
L.  Ins.  Co.,  168  Mass.  245. 

It  has  been  held  that  this  presuc  ption    eannot  be  indulged  where 


120  LAW   OF   EVIDENCE.  §  3Qc 

presumption  applies  in  favor  of  the  delivery  of  deeds  of  real 
estate.132 

In  the  case  of  a  conveyance  of  real  property,  it  is  said  that, 
if  the  grantor  causes  the  deed  to  be  recorded,  this  amounts, 

execution  of  the  instrument,  which,  of  course,  includes  delivery,  is 
put  in  issue  by  the  pleadings.  Wilbur  v.  Stoepel,  82  Mich.  344,  21  A.  S. 
R.  568,  575.  This  case  seems  to  misconceive  the  office  of  an  evidentiary 
presumption.  Such  a  presumption  may  consistently  operate  against 
the  party  having  the  burden  of  proof.  See  §§  4,  16  (c),  17  (b),  21, 
supra. 

Possession  of  a  negotiable  instrument  payable  to  bearer,  or  a  per- 
son's possession  of  an  instrument  payable  to  himself,  raises  a  pre- 
sumption of  its  proper  delivery.  Curtis  v.  Rickards,  1  Man.  &  G.  46; 
Garrigus  v.  Home  Frontier  &  F.  M.  Soc.,  3  Ind.  App.  91,  50  A.  S.  R. 
262.  Possession  as  evidence  of  ownership,  see  §  89 (a),  infra. 

If  a  negotiable  instrument  executed  by  several  persons  is  intrusted 
tiv  all  to  one  of  the  makers,  the  presumption  is  that  he  has  authority 
to  deliver  it  to  the  payee.  Carter  v.  Moulton,  51  Kan.  9,  37  A.  S.  R. 
259. 

It  has  been  held  that,  if  the  signature  of  a  party  is  proved,  it  may 
be  presumed  that  the  deed  was  delivered.  Grellier  v.  Neale,  Peake,  146. 
And  see  Hall  v.  Bainbridge,  12  Q.  B.  699;  Powers  v.  Russell,  13  Pick. 
(Mass.)  69;  Diehl  v.  Emig,  65  Pa.  320. 

132  Lewis  v.  Watson,  98  Ala.  479,  39  A.  S.  R.  82;  Ward  v.  Dougherty, 
75  Cal.  240,  7  A.  S.  R.  151;  Campbell  v.  Carruth,  32  Fla.  264;  Griffin  v. 
Griffin,  125  111.  430;  Blair  v.  Howell,  68  Iowa,  619;  Rohr  v.  Alexander, 
57  Kan.  381;  Ward  v.  Lewis,  4  Pick.  (Mass.)  518,  520;  Windom  v. 
Schuppel,  39  Minn.  35;  Boody  v.  Davis,  20  N.  H.  140,  51  A.  D.  210; 
Strough  v.  Wilder,  119  N.  Y.  530,  7  L.  R.  A.  555;  Devereux  v.  McMahon, 
108  N.  C.  134,  12  L.  R.  A.  205;  Flint  v.  Phipps,  16  Or.  437.  And  see 
Powers  v.  Russell,  13  Pick.  (Mass.)  69,  Thayer,  Gas.  Ev.  74. 

Approval  of  a  Spanish  grant  by  the  governor,  and  delivery  of  the 
titlp  papers  to  the  grantee,  cannot  be  presumed  from  the  grantee's 
possession  of  the  papers.  Bergere  v.  U.  S.,  168  U.  S.  66.  Nor  does 
the  presumption  apply  where  the  deed  was  delivered  after  the  death 
of  the  grantor  by  his  administrator.  Tyler  v.  Hall,  106  Mo.  313,  27 
A.  S.  R.  337.  See,  also,  note  133,  infra. 

A  stronger  presumption  prevails  in  favor  of  the  delivery  of  a  deed 
of  voluntary  settlement  than  in  case  of  a  deed  of  bargain  and  sale. 
Rodemeier  v.  Brown,  169  111.  347,  61  A.  S.  R.  176;  Shields  v.  Bush,  189 
111.  534,  82  A.  S.  R.  474. 


§  30C  AUTHORITY   AND   REGULARITY.  121 

as  against  him,  to  prima  facie  evidence  of  delivery.133  This 
is  undoubtedly  true  if  the  grantee  has  previously  agreed,  ei- 
ther expressly  or  impliedly,  to  accept  the  deed  ;134  -but  it  is 
not  the  rule  where  the  grantee  has  no  knowledge  of  the  exe- 
cution of  the  deed,135  unless  the  grant  is  obviously  beneficial 

"sLaughlin  v.  Calumet  &  C.  Canal  &  Dock  Co.,  65  Fed.  441;  Shef- 
field Land,  I.  &  C.  Co.  v.  Neill,  87  Ala.  158;  Tenn.  Coal,  I.  &  R.  Co.  v. 
Wheeler,  125  Ala.  538;  Parker  v.  Salmons,  101  Ga.  160,  65  A.  S.  R.  291; 
Warren  v.  Jacksonville,  15  111.  236,  58  A.  D.  610;  Glaze  v.  Three  Rivers 
F.  M.  F.  Ins.  Co.,  87  Mich.  349;  Burke  v.  Adams,  80  Mo.  504,  50  A.  R. 
610;  Helms  v.  Austin,  116  N.  C.  751;  Mitchell's  Lessee  v.  Ryan,  3 
Ohio  St.  377;  Blight  v.  Schenck,  10  Pa.  285,  51  A.  D.  478;  Swiney  v. 
Swiney,  14  Lea  (Tenn.)  316.  Contra,  Barnes  v.  Barnes,  161  Mass.  381. 

This  rule  applies  to  sheriff's  deeds.  Lewis  v.  Watson,  98  Ala.  479, 
39  A.  S.  R.  82. 

The  presumption  is  not  overcome  by  declarations  of  the  grantor 
that  the  deed  was  not  delivered.  Helms  v.  Austin,  116  N.  C.  751;  Kern 
v.  Howell,  180  Pa.  315,  57  A.  S.  R.  641.  Nor  by  the  fact  that  the 
grantor  has  possession  of  the  deed  after  recordatidn.  Estes  v.  German 
Nat.  Bank,  62  Ark.  7;  Colee  v.  Colee,  122  Ind.  109,  17  A.  S.  R.  345; 
Tobin  v.  Bass,  85  Mo.  654,  55  A.  R.  392;  Helms  v.  Austin,  116  N.  C.  751. 
See,  however,  Powers  v.  Russell,  13  Pick.  (Mass.)  69. 

The  presumption  does  not  arise  where  the  grantee  obtains  pos- 
session of  the  deed,  after  the  grantor's  death,  from  his  personal  repre- 
sentative, and  has  it*recorded.  Stone  v.  French,  37  Kan.  145,  1  A.  S. 
R.  237;  Hill  v.  McMichol,  80  Me.  209;  Parrott  v.  Avery,  159  Mass.  594, 
38  A.  S.  R.  465.  See,  also,  note  132,  supra.  If,  however,  a  deed  ap- 
pears to  have  been  recorded,  and  nothing  more  appears,  the  presump- 
tion is  that  it  was  caused  to  be  recorded  by  the  grantee,  and  this 
raises  a  presumption  of  delivery,  in  the  absence  of  evidence  to  the 
contrary.  Sweetland  v.  Buell,  164  N.  Y.  541,  79  A.  S.  R.  676.  See, 
however,  Chess  v.  Chess,  1  Pen.  &  W.  (Pa.)  32,  21  A.  D.  350. 

The  presumption  does  not  dispense  with  a  recital  of  delivery  required 
by  statute  as  a  prerequisite  to  recordation.  Rushin  v.  Shields,  11  Ga. 
636,  56  A.  D.  436. 

is*  Walton  v.  Burton,  107  111.  54;  O'Connor  v.  O'Connor,  100  Iowa, 
476,  480;  Steele  v.  Lowry,  4  Ohio,  72,  19  A.  D.  581;  Prignon  v.  Daussat, 

4  Wash.  199,  31  A.  S.  R.  914. 

wsYounge  v.  Guilbeau,  3  Wall.   (U. .S.)   636;   Parmelee  v.  Simpson, 

5  Wall.  (U.  S.)  81;  Rittmaster  v.  Brisbane,  19  Colo.  371;  Sullivan  v. 
Eddy,  154  111.  199;   Deere  v.  Nelson,  73  Iowa,  186;   Day  v.  Griffith,  15 


122  LAW   OF   EVIDENCE.  §  3QC 

to  him,  in  which  case,  at  any  rate  if  he  is  under  contractual 
disability,  his  acceptance  is  presumed,  in  some  jurisdictions, 
so  that  mere  recordation  of  the  deed  by  the  grantor  is  a  suffi- 
cient delivery.136 

The  presumption  is,  in  the  absence  of  evidence  to  the  con- 
trary, that  a  deed  was  delivered  on  the  day  of  its  date.137 

If  several  deeds  are  executed  in  one  transaction,  the  pre- 
sumption is  that  they  were  delivered  in  such  order  of  time  as 
to  make  them  effectual.138 

These  presumptions  are  rebuttable.139 

Iowa,  104;  Alexander  v.  De  Kermel,  81  Ky.  345;  Hawkes  v.  Pike,  105 
Mass.  560,  7  A.  R.  554;  Samson  v.  Thornton,  3  Mete.  (Mass.)  275,  37 
A.  D.  135;  Babbitt  v.  Bennett,  68  Minn.  260;  Cravens  v.  Rossiter,  116 
Mo.  338,  38  A.  S.  R.  606;  Barns  v.  Hatch,  3  N.  H.  304,  14  A.  D.  369. 

Even  though  the  grantee  does  not  know  of  the  deed  at  the  time  the 
grantor  has  it  recorded,  yet,  if  he  assents  to  the  grant  upon  learning 
of  it,  there  is  a  valid  delivery.  Weber  v.  Christen,  121  111.  91,  2  A.  S.  R. 
68;  Shields  v.  Bush,  189  111.  534,  82  A.  S.  R.  474;  Lee  v.  Fletcher,  46 
Minn.  49,  12  L.  R.  A.  171;  Boody  v.  Davis,  20  N.  H.  140,  51  A.  D.  210. 

136  See  §  30  (d),  infra,  as  to  presumption  of  acceptance. 

137  Ward  v.  Dougherty,  75  Gal.  240,  7  A.  S.  R.  151  (statute);  Billings 
v.  Stark,  15  Fla.  297;  Briggs  v.  Fleming,  112  Ind.  313;  Farwell  v.  Des 
Moines  Brick  Mfg.  Co.,  97  Iowa,  286,  35  L.  R.  A.  63;  Shoptaw  v.  Ridg- 
way's  Adm'r,  22  Ky.  L.  R.  1495,  60  S.  W.  723;  Breckenridge  v.  Todd, 
3  T.  B.  Mon.  (Ky.)  52,  16  A.  D.  83;  Rhone  v.  Gale,  12  Minn.  54;  People 
v.  Snyder,  41  N.  Y.  397;  Purdy  v.  Coar,  109  N.  Y.  448,  4  A.  S.  R.  491; 
Kendrick  v.  Dellinger,  117  N.  C.  491;  Hall  v.  Benner,  1  Pen.  &  W.  (Pa.) 
402,  21  A.  D.  394;  Wheeler  v.  Single,  62  Wis.  380;   Dodge  v.  Hopkins, 
14  Wis.  630.     And  see  Williams  v.  Woods,  16  Md.  220.     Presumption 
of  date  of  execution,  see  page  118,  supra. 

This  is  true,  even  though  the  instrument  was  subsequently  ac- 
knowledged. Lake  Erie  &  W.  R.  Co.  v.  Whitham,  155  111.  514,  46  A.  S. 
R.  355;  Smiley  v.  Fries,  104  111.  416;  Hardin  v.  Crate,  78  111.  533; 
Ford  v.  Gregory's  Heirs,  10  B.  Mon.  (Ky.)  175,  180;  People  v.  Snyder, 
51  N.  Y.  397,  402;  Raines  v.  Walker,  77  Va.  92.  Contra,  Blanchard 
v.  Tyler,  12  Mich.  339,  86  A.  D.  57.  And  see  Henderson  v.  Baltimore, 
8  Md.  352,  359.  See,  also,  in  this  connection,  Clark  v.  Akers,  16  Kan. 
166;  Henry  County  v.  Bradshaw,  20  Iowa,  355;  Loomis  v.  Pingree,  43 
Me.  299;  Windom  v.  Schuppel,  39  Minn.  35. 


§  30  J  AUTHORITY   AND   REGULARITY.  123 

(d)  Acceptance.  The  acceptance  of  an  instrument  by  the 
party  to  be  benefited  may  oftentimes  be  presumed,  in  the  ab- 
sence of  evidence  to  the  contrary.140 

If  a  deed  is  beneficial  to  the  grantee,  and  imposes  no  bur- 
dens upon  him,  a  presumption  arises,  in  the  absence  of  evi- 
dence to  the  contrary,  that  he  accepted  it;  and  this  is  true^ 
even  though  the  deed  was  not  delivered  to  him  in  person,  but 
to  a  third  person  for  his  benefit.1*1  In  some  jurisdictions  this 

The  presumption  does  not  apply  to  forged  instruments.  Remington 
Paper  Co.  v.  O'Dougherty,  81  N. 'Y.  474. 

138  Loomis  v.  Pingree,  43  Me.  299.     See,  also,  page  119,  supra. 

«9  Wellborn  v.  Weaver,  17  Ga.  267,  63  A.  D.  235;  Union  Mut.  Ins.  Co. 
v.  Campbell,  95  111.  267,  35  A.  R.  166;  Price  v.  Hudson,  125  111.  284; 
Ford  v.  Gregory's  Heirs,  10  B.  Mon.  (Ky.)  175,  180;  Hendricks  v.  Ras- 
son,  53  Mich.  575;  Eaton  v.  Trowbridge,  38  Mich.  454;  'Glaze  v.  Three 
Rivers  F.  M.  F.  Ins.  Co.,  87  Mich.  349;  Windom  v.  Schuppel,  39  Minn. 
35,  36;  Metcalfe  v.  Brandon,  60  Miss.  685;  Bullitt  v.  Taylor,  34  Miss. 
708,  69  A.  D.  412;  Gilbert  v.  North  American  F.  Ins.  Co.,  23  Wend.  (N. 
Y.)  43,  35  A.  D.  543;  Walsh's  Adm'x  v.  Vt.  Mut.  F.  Ins.  Co.,  54  Vt.  351; 
Bruce  v.  Slemp,  82  Va.  352;  Raines  v.  Walker,  77  Va.  92. 

«o  Acceptance  of  officer's  bond  by  corporation.  U.  S.  Bank  v.  Dan- 
dridge,  12  Wheat.  (U.  S.)  64,  70. 

Acceptance  of  subscription  by  corporation.  Richelieu  Hotel  Co.  v. 
International  M.  E.  Co.,  140  111.  248,  33  A.  S.  R.  234. 

Acceptance  of  gift  of  money.  Olds  v.  Powell,  7  Ala.  652,  42  A.  D.  605; 
Beaver  v.  Beaver,  117  N.  Y.  421,  15  A.  S.  R.  531. 

Assent  of  a  widow  to  beneficial  testamentary  provision  in  lieu  of 
dower.  Merrill  v.  Emery,  10  Pick.  (Mass.)  507. 

Where  a  promise  is  made  by  one  person  to  another  for  the  benefit  of 
a  third,  the  latter  is  presumed  to  accept  it,  in  the  absence  of  evidence 
to  the  contrary.  Rogers  v.  Gosnell,  58  Mo.  589.  This  is  true,  especially 
if  the  third  person  is  a  minor.  Pruitt  v.  Pruitt,  91  Ind.  595. 

Acceptance  of  unknown  terms  and  conditions  of  contract,  see  §  51, 
infra. 

141  Hurst's  Lessee  v.  McNeil,  1  Wash.  C.  C.  70,  Fed.  Gas.  No.  6,936; 
Merrills  v.  Swift,  18  Conn.  257,  46  A.  D.  315;  Wellborn  v.  Weaver,  17 
Ga.  267,  63  A.  D.  235;  Warren  v.  Jacksonville,  15  111.  236,  58  A.  D. 
610;  Thompson  v.  Candor,  60  111.  244;  Henry  v.  Anderson,  77  Ind.  361; 
Robinson  v.  Gould,  26  Iowa,  89;  Holmes  v.  McDonald,  119  Mich.  563, 
75  A.  S.  R.  430;  Wall  v.  Wall,  30  Miss.  91,  64  A.  D.  147;  Boody  v. 
Davis,  20  N.  H.  140,  51  A.  D.  2:^;  Church  v.  Oilman,  15  Wend.  (N.. 


124  LAW   OF   EVIDENCE.  §  30d 

rule  obtains,  even  where  it  appears  that  the  grantee  did  not 
know  of  the  deed,  and,  to  dispel  the  presumption,  it  must  be 
shown  that  the  grantee  actually  refused  to  accept  it.142  In 
other  jurisdictions,  a  contrary  view  is  taken,  and  the  pre- 
sumption of  acceptance  is  overthrown  by  evidence  that  the 
grantee  did  not  know  of  the  deed.143  The  presumption  of  ac- 
ceptance applies  with  especial  force  to  the  case  of  a  bene- 
ficial grant  to  a  person  non  sui  juris,  and,  under  these  circum- 
stances, it  seems  everywhere  to  be  immaterial  whether  the 
grantee  knew  of  the  deed  or  not.144  As  has  been  implied, 
however,  this  presumption  is  indulged  only  when  the  deed  is 

Y.)  656,  30  A.  D.  82;  Grain  v.  Wright,  114  N.  Y.  307;  Arnegaard  v. 
Arnegaard,  7  N.  D.  475,  41  L.  R.  A.  258;  Blight  v.  Schenck,  10  Pa.  285, 
51  A.  D.  478.  . 

This  rule  applies  to  trust  deeds,  including  deeds  for  the  benefit  of 
creditors.  Governor  v.  Campbell,  17  Ala.  566;  Hempstead  v.  John- 
ston, 18  Ark.  123,  65  A.  D.  458;  Eyrick  v.  Hetrick,  13  Pa.  488;  Stone 
v.  King,  7  R.  I.  358,  84  A.  D.  557;  Bowden  v.  Parrish,  86  Va.  67,  19  A. 
S.  R.  873.  See,  however,  Benning  v.  Nelson,  23  Ala.  801. 

The  presumption  does  not  apply  in  favor  -of  a  stranger  to  the  deed, 
where  it  is  not  shown  that  the  grantee  ever  claimed  under,  or  even 
heard  of,  the  deed.  Hulick  v.  Scovil,  9  111.  159. 

142  Elsberry  Y.  Boykin,  65  Ala.  336;  Moore  v.  Giles,  49  Conn.  570; 
Wuester  v.  Folin,  60  Kan.  334;  Renfro  v.  Harrison,  10  Mo.  411,  415; 
Peavey  v.  Tilton,  18  N.  H.  151,  45  A.  D.  365;  Vreeland  v.  Vreeland,  48 
N.  J.  Eq.  56;  Lady  Superior  of  C.  N.  of  Montreal  v.  McNamara,  3  Barb. 
Ch.  (N.  Y.)  375,  49  A.  D.  184;  Mitchell's  Lessee  v.  Ryan,  3  Ohio  St. 
377;  Read  v.  Robinson,  6  Watts  &  S.  (Pa.)  329. 

i*3Hibberd  v.  Smith,  67  Cal.  547,  56  A.  R.  726;  Moore  v.  Flynn,  135 
111.  74;  Bell  v.  Farmers'  Bank,  11  Bush  (Ky.)  34,  21  A.  R.  205;  Wat- 
son v.  Hillman,  57  Mich.  607;  Tuttle  v.  Turner,  28  Tex.  759. 

I**  Infants.  Rhea  v.  Bagley,  63  Ark.  374,  36  L.  R.  A.  86;  Weber  v. 
Christen,  121  111.  91,  2  A.  S.  R.  68;  Abbott  v.  Abbott,  189  111.  488,  82  A. 
S.  R.  470;  Colee  v.  Colee,  122  Ind.  109,  17  A.  S.  R.  345;  Vaughan  v. 
Godman,  94  Ind.  191,  199;  Palmer  v.  Palmer,  62  Iowa,  204;  Owings  v. 
Tucker,  90  Ky.  297;  Hall  v.  Hall,  107  Mo.  101,  108;  Tate  v.  Tate,  21 
N.  C.  (I  Dev.  &  B.  Eq.)  22;  Davis  v.  Garrett,  91  Tenn.  147;  Bjmerland 
v.  Eley,  15  Wash.  101. 

Imbeciles.    Eastham  v.  Powell,  51  Ark.  530. 


§  30e  AUTHORITY    AND   REGULARITY.  125 

beneficial  to  the  grantee.  If  it  imposes  any  obligations  upon 
him,  the  presumption  does  not  arise.145  The  presumption  of 
acceptance  of  a  beneficial  grant  prevails  in  some  states,  even 
as  against  third  persons  who  have  acquired  rights  in  the  prop- 
erty after  delivery  of  the  deed,  and  before  actual  acceptance, 
if  any  ;146  as  where,  for  instance,  the  grantor  delivered  the  deed 
to  the  recording  officer,  and,  before  the  grantee  learned  of 
it,  a  creditor  of  the  grantor  attached  the  property. 
The  presumption  of  acceptance  is  rebuttable.147 
(e)  Negotiable  instruments.  In  an  action  by  the  payee 
against  the  maker  of  a  negotiable  instrument,  it  is  presumed 
that  the  paper  is  based  on  a  sufficient  consideration,  and  the 
burden  of  proving  the  contrary  rests,  therefore,  on  the 
maker.148  In  an  action  brought  against  the  maker  by  a  sub- 

Lunatics.  McCartney  v.  McCartney  (Tex.  Civ.  App.)  53  S.  W.  388, 
judgment  reversed  55  S.  W.  310. 

In  some  states  this  presumption  applies  to  persons  under  disability 
alone.  McFadden  v.  Ross,  14  Ind.  App.  312;  Davis  v.  Davis,  92  Iowa,  147. 

"5  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Ruddell,  53  Ark.  32;  Rittmaster 
v.  Brisbane,  19  Colo.  371;  Thompson  v.  Dearborn,  107  111.  87;  Jefferson 
County  Bldg.  Ass'n  v.  Heil,  81  Ky.  513;  Johnson  v.  Farley,  45  N.  H. 
505;  Gifford  v.  Corrigan,  105  N.  Y.  223. 

146  Doe  d.  Garnons  v.  Knight,  5  Barn.  &  C.  671,  8  Dowl.  &  R.  348;  Jen- 
nings v.  Jennings,  104  Cal.  150;  Halluck  v.  Bush,  2  Root  (Conn.)  26, 
1  A.  D.  60;  Moore  v.  Giles,  49  Conn.  570;  Vaughan  v.  Godman,  103 
Ind.  499;  Jones  v.  Swayze,  42  N.  J.  Law,  279;  Nat.  Bank  v.  Bonnell,  46 
App.  Div.  (N.  Y.)  302;  Robbins  v.  Rascoe,  120  N.  C.  79,  38  L.  R.  A. 
238.  Contra,  Loubat  v.  Kipp,  9  Fla.  60;  Woodbury  v.  Fisher,  20  Ind. 
387,  83  A.  D.  325;  Samson  v.  Thornton,  3  Mete.  (Mass.)  275,  37  A.  D. 
135;  Kuh  v.  Garvin,  125  Mo.  547;  Johnson  v.  Farley,  45  N.  H.  505; 
Foster  v.  Beardsley  Scythe  Co.,  47  Barb.  (N.  Y.)  505;  McEwen  v.  Bam- 
berger,  3  Lea  (Tenn.)  576;  Denton  v.  Perry,  5  Vt.  382;  Welch  v.  Sack- 
ett,  12  Wis.  243.  See  Hammon,  Cont.  §  271. 

i47Townson  v.  Tickell,  3  Barn.  &  Aid.  31;  Treadwell  v.  Bulkley,  4 
Day  (Conn.)  395,  4  A.  D.  225;  Merrills  v.  Swift,  18  Conn.  257,  46  A.  D. 
315;  Defreese  v.  Lake,  109  Mich.  415,  32  L.  R.  A.  744;  Metcalfe  v.  Bran- 
don, 60  Miss.  685. 

KB  Perot  v.  Cooper,  17  Colo.  80,  31  A.  S.  R.  258;  Topper  v.  Snow,  20 


126  LAW   OF   EVIDENCE.  §  3Qe 

sequent  holder  of  the  paper,  the  presumption  is  that  the 
holder  acquired  the  instrument  before  maturity,  for  value,  and 
without  notice  of  any  defects  therein,  so  that  the  burden  of 
proving  the  contrary  rests  on  the  maker.149 

111.  434;  Towsey  v.  Shook,  3  Blackf.  (Ind.)  267,  25  A.  D.  108;  Cook  v. 
Noble,  4  Ind.  221;  Andrews  v.  Hayden's  Adm'r,  88  Ky.  455;  Jennison 
v.  Stafford,  1  Cush.  (Mass.)  168,  48  A.  D.  594;  Flint  v  Phipps,  16 
Or.  437;  Hubble  v.  Fogartie,  3  Rich.  Law  (S.  C.)  413,  4*  A.  D.  775; 
Herman  v.  Gunter,  83  Tex.  66,  29  A.  S.  R.  632;  McKenzie  v.  Or.  Imp. 
Co.,  5  Wash.  409. 

The  rule  has  been  held  to  apply  to  all  promissory  notes,  whether 
negotiable  or  not.  Carnwright  v.  Gray,  127  N.  Y.  92,  24  A.  S.  R.  424. 
But  it  does  not  apply  to  notes  made  by  insane  persons.  Here  the 
burden  of  proving  consideration  rests  on  the  holder.  Hosier  v.  Beard, 
54  Ohio  St.  398,  56  A.  S.  R.  720. 

This  presumption  of  consideration  is  rebuttable  as  between  maker 
and  payee,  and  as  between  indorser  and  indorsee.  Williams  v.  Forbes, 
114  111.  167.  But  it  is  not  rebuttable  as  against  subsequent  holders 
before  maturity,  for  value,  and  without  notice.  Goodman  v.  Harvey, 
4  Adol.  &  E.  870;  Murray  v.  Beckwith,  81  111.  43;  Shenandoah  Nat. 
Bank  v.  Marsh,  89  Iowa,  273,  48  A.  S.  R.  381;  Hascall  v.  Whitmore,  19 
Me.  102,  36  A.  D.  738;  Laflin  &  R.  P.  Co.  v.  Sinsheimer,  48  Md.  411,  30 
A.  R.  472;  Howry  v.  Eppinger,  34  Mich.  29;  Jennings  v.  Todd,  118  Mo. 
296,  40  A.  S.  R.  373;  Beltzhoover  v.  Blackstock,  3  Watts  (Pa.)  20,  27  A. 
D.  330;  Greneaux  v.  Wheeler,  6  Tex.  515;  6  Current  Law,  794. 

1*9  ENGLAND:  Millis  v.  Barber,  1  Mees.  &  W.  425;  Midriieton  v. 
Earned,  4  Exch.  241. 

UNITED  STATES:  New  Orleans  C.  &  B.  Co.  v.  Montgomery,  95  TT  a. 
16;  Collins  v.  Gilbert,  94  U.  S.  753. 

ALABAMA:     Lehman  v.  Tallassee  Mfg.  Co.,  64  Ala.  567. 

CALIFORNIA:  Sperry  v.  Spaulding,  45  Cal.  544;  Poorman  v  Mills, 
35  Cal.  118.  95  A.  D.  90. 

GEORGIA:     Dickerson  v.  Burke,  25  Ga.  225. 

ILLINOIS:  Mobley  v.  Ryan,  14  111.  51,  56  A.  D.  488;  Smith  v.  Nftvlin. 
89  111.  193. 

IOWA:  Union  Nat.  Bank  v.  Barber,  56  Iowa,  559;  Shaw  v.  Jacobs, 
89  Iowa,  713,  48  A.  S.  R.  411. 

KANSAS:  Ecton  v.  Harlan,  20  Kan.  452;  First  Nat.  Bank  v.  Emmitt, 
52  Kan.  603. 

LOUISIANA:     Taylor  v.  Bowles,  28  La,  Ann.  294. 

MAINE:     Walker  v.  Davis.  33  Me.  516. 


§  30e  AUTHORITY   AND   REGULARITY.  \21 

In  some  states,  however,  it  is  held  that  the  burden  of  proof 
as  to  consideration  rests  on  the  payee  in  the  sense  that,  if  the 

MARYLAND:  McDowell  v.  Goldsmith,  6  Md.  319,  61  A.  D.  305;  Hop- 
kins v.  Kent.  17  Md.  113. 

MASSACHUSETTS:     Ranger  v.  Gary,  1  Mete.  369. 

MICHIGAN:     Conley  v.  Winsor.  41  Mich.  253. 

MINNESOTA:     Cummings  v.  Thompson,  18  Minn.  246. 

MISSOURI:  Clark  v.  Schneider,  17  Mo.  295;  Borgess  Inv.  Co.  v.  Vette, 
142  Mo.  560.  64  A.  S.  R.  567. 

NEW  JERSEY:     Duncan  v.  Gilbert,  29  N.  J.  Law,  521. 

NEW  YORK:  James  v.  Chalmers,  6  N.  Y.  209;  Cruger  v.  Armstrong, 
3  Johns.  Cas.  5,  2  A.  D.  126;  Pinkerton  v.  Bailey,  8  Wend.  600;  Vos- 
burgh  v.  Diefendorf,  119  N.  Y.  357,  16  A.  S.  R.  836. 

NORTH  CAROLINA:  Tredwell  v.  Blount,  86  N.  C.  33;  Commercial  Bank 
v.  Burgwyn,  108  N.  C.  62,  23  A.  S.  R.  49. 

OHIO:     Davis  v.  Bartlett,  12  Ohio  St.  534,  80  A.  D.  375. 

PENNSYLVANIA:  Beltzhoover  v.  Blackstock,  3  Watts,  20,  27  A.  D. 
330. 

SOUTH  CAROLINA:     First  Nat.  Bank  v.  Anderson,  28  S.  C.  143. 

TEXAS:     Blum  v.  Loggins,  53  Tex.  121. 

WISCONSIN:     Mason  v.  Noonan,  7  Wis.  609. 

The  presumption  applies  in  favor  of  a  subsequent  holder  of  a 
note  payable  to  bearer.  Jones  v.  Westcott,  2  Brev.  (S.  C.)  166,  3  A.  D. 
704. 

In  Arkansas  this  presumption  has  been  abrogated  by  statute,  so 
far  as  it  assumes  a  transfer  before  maturity.  Clendenin  v.  Southerland, 
31  Ark.  20.  But  production  of  note,  with  proof  that  the  indorsement 
was  made  before  maturity,  raises  a  presumption  that  the  indorsee  took 
the  note  for  value  and  without  notice  of  equities.  Tabor  v.  Merchants' 
Nat.  Bank,  48  Ark.  454,  3  A.  S.  R.  241. 

Proof  of  want  or  failure  of  consideration  as  between  the  parties  to 
the  note  does  not  throw  on  the  indorsee  the  burden  of  adducing  evi- 
dence that  he  paid  value  for  the  paper  before  maturity,  without  notice 
of  the  defect.  Fitch  v.  Jones,  5  El.  &  Bl.  238,  245;  Galvin  v.  Meridian 
Nat.  Bank,  129  Ind.  439;  Clapp  v.  Cedar  County,  5  Iowa,  15,  68  A.  D. 
€78;  Ellicott  v.  Martin,  6  Md.  509,  61  A.  D.  327;  New  Hanover  Bank  v. 
Bridgers,  98  N.  C.  67,  2  A.  S.  R.  317;  Knight  v.  Pugh,  4  Watts  &  S.  (Pa.) 
445,  39  A.  D.  99;  Herman  v.  Gunter,  83  Tex.  66,  29  A.  S.  R.  632;  Wilson 
v.  Lazier,  11  Grat.  (Va.)  477.  Nor  does  proof  that  the  maker  has  paid 
the  amount  to  the  original  payee  without  notice  of  the  transfer.  Eman- 
nel  v.  White,  34  Miss.  56,  69  A.  D.  385.  But  the  burden  of  showing 
notice  of  the  transfer  of  a  nonnegotiable  instrument  before  payment 


128  LAW   OF   EVIDENCE.  §   30e 

jury  are  not  convinced  by  a  preponderance  of  the  evidence, 
viewed  as  a  whole,  that  a  consideration  was  given,  they  must 
find  for  the  maker,  but  that,  by  producing  the  instrument, 
together  with  proof  or  admission  of  its  execution,  the  payee- 
makes  a  prima  facie  case  which  casts  on  the  maker  the  burden 
of  adducing  evidence  of  want  of  consideration,  and,  in  the  ab- 
sence of  such  evidence,  entitles  the  payee  to  a  verdict.15* 
And  the  same  rule  is  applied  where  the  action  is  brought  by 
an  indorsee  of  the  paper.151 

If  fraud  or  illegality  is  set  up  as  a  defense  in  an  action  on 
a  negotiable  instrument,  the  burden  of  proof  as  to  that  issue 
rests  on  the  defendant.152  If,  however,  the  defendant  ad- 
duces evidence  of  fraud  'or  illegality,  the  presumption  which 
otherwise  prevails  in  favor  of  a  subsequent  holder  of  nego- 
tiable paper  is  dispelled,  and  the  plaintiff  is  required  to  ad- 
duce evidence  that  he  acquired  the  instrument  before  matu- 
rity, for  value,  and  without  notice  of  any  defects  therein.15* 

of  it  by  the  defendant  to  the  payee  lies  on  the  plaintiff  (Johnston  v.  Al- 
len, 22  Fla.  224,  1  A.  S.  R.  180),  since  the  presumption  applies  to 
negotiable  instruments  only  (Barrick  v.  Austin,  21  Barb.  [N.  Y.]  241). 

iso  Huntington  v.  Shute,  180  Mass.  371,  91  A.  S.  R.  309;  Delano  v. 
Bartlett,  6  Gush.  (Mass.)  364;  Burnham  v.  Allen,  I  Gray  (Mass.) 
i96;  Perley  v.  Perley,  144  Mass.  104. 

i5i  Atlas  Bank  v.  Doyle,  9  R.  I.  76,  98  A.  D.  368,  11  A.  R.  219. 

i52Towsey  v.  Shook,  3  Blackf.  (Ind.)  267,  25  A.  D.  108;  Emery  v. 
Estes,  31  Me.  155;  Pratt  v.  Langdon,  97  Mass.  97,  93  A.  D.  61;  Craig  v. 
Proctor,  6  R.  I.  547. 

The  same  is  true  where  the  instrument  is  alleged  to  have  been  lost 
or  stolen.  Marion  County  Com'rs  v.  Clark,  94  U.  S.  278,  285. 

153  Fraud. 

ENGLAND:     Fitch  v.  Jones,  5  El.  &  Bl.  238,  245  (semble). 

UNITED  STATES:     Smith  v.  Sac  County,  11  Wall.  139. 

ALABAMA:     Gilman  v.  N.  O.  &  S.  R.  Co.,  72  Ala.  566. 

ARKANSAS:  Tabor  v.  Merchants'  Nat.  Bank,  48  Ark.  454,  3  A.  S.  R. 
241. 

CALIFORNIA  :     Sperry  v.  Spalding,  45  Cal.  544. 

GEORGIA:     Merchants'  &  P.  Nat.  Bank  v.  Masonic  Hall,  62  Ga.  271. 


?   30e  AUTHORITY   AND   REGULARITY.  129 

General  evidence  of  want  of  notice  is  sufficient  to  take  the 
case  to  the  jury,  however.     If  the  plaintiff  shows  that  he  ac- 

INDIANA:  Harbison  v.  Ind.  Bank,  28  Ind.  133,  92  A.  D.  308;  Eichel- 
berger  v.  Old  Nat.  Bank,  103  Ind.  401. 

IOWA:  Monroe  Bank  v.  Anderson  Bros.  Min.  &  R.  Co.,  65  Iowa,  692, 
701. 

MARYLAND:  Williams  v.  Huntington,  68  Md.  590,  6  A.  S.  R.  477; 
Cover  v.  Myers,  75  Md.  406,  32  A.  S.  R.  394. 

MASSACHUSETTS:  Munroe  v.  Cooper,  5  Pick.  412;  Bissell  v.  Morgan, 
11  Gush.  198. 

MICHIGAN:     Conley  v.  Winsor,  41  Mich.  253. 

MINNESOTA:     Cummings  v.  Thompson,  18  Minn.  246. 

MISSOURI:  Johnson  v.  McMurry,  72  Mo.  278;  Henry  v.  Sneed,  99 
Mo.  407,  17  A.  S.  R.  580. 

MONTANA:     Thamling  v.  Duffey,  14  Mont.  567,  43  A.  S.  R.  658. 

NEBRASKA:     Haggland  v.  Stuart,  29  Neb.  69. 

NEW  HAMPSHIRE:     Perkins  v.  Prout,  47  N.  H.  387,  93  A.  D.  449. 

NEW  JERSEY:     Duncan   v.   Gilbert.   29  N.  J.   Law,   521. 

NEW  YORK:  Joy  v.  Diefendorf,  130  N.  Y.  6,  27  A.  S.  R.  484;  Grant 
v.  Walsh,  145  N.  Y.  502,  45  A.  S.  R.  626;  Vosburgh  v.  Diefendorf,  119 
N.  Y.  357,  16  A.  S.  R.  836. 

NORTH  CAROLINA:  Commercial  Bank  v.  Burgwyn,  108  N.  C.  62,  23  A. 
S.  R.  49;  Pugh  v.  Grant,  86  N.  C.  39. 

OHIO:  Davis  v.  Bartlett,  12  Ohio  St.  534,  80  A.  D.  375;  McKesson 
v.  Stanberry,  3  Ohio  St.  156. 

PENNSYLVANIA:     Beltzhoover  v.  Blackstock.  3  Watts.  20.  27  A.  D.  330. 

TEXAS:     Blum  v.  Loggins,  53  Tex.  121. 

VIRGINIA:  Vathir  v.  Zane,  6  Grat.  246;  Wilson  v:  Lazier,  11  Grat. 
477.  . 

The  fraud  which  will  thus  shift  the  burden  of  adducing  evidence 
must  be  a  fraud  against  the  defendant  maker.  Kinney  v.  Kruse,  28 
Wis.  183. 

If  the  plaintiff  makes  a  prima  facie  case  of  bona  fide  purchase 
as  part  of  his  principal  case,  the  defendant  cannot  show  fraud  In 
the  execution  of  the  instrument,  without  first  adducing  evidence  de- 
stroying the  prima  facie  validity  of  the  plaintiff's  case.  Drovers'  Nat. 
Bank  v.  Blue,  110  Mich.  31,  64  A.  S.  R.  327;  Reeve  v.  L.,  L.  &  G.  Ins. 
Co.,  39  Wis.  520. 

Illegality.  Fitch  v.  Jones,  5  El.  &  Bl.  238,  245  (semble);  Bailey 
v.  Bidwell,  13  Mees.  &  W.  73;  Bingham  v.  Stanley,  2  Q.  B.  117;  Pana 
v.  Bowler,  107  U.  S.  529,  542;  Ruddell  v.  Landers,  25  Ark.  238,  94  A.  D. 

Hammon,  Ev. — 9. 


130  LAW   OF   EVIDENCE.  §   3Qe 

quired  the  instrument  before  maturity,  for  value,  in  due  course 
of  business,  and  no  circumstances  of  suspicion  appear,  the 
presumption  is  that  he  took  without  notice  of  defects,  and  the 
burden  of  adducing  evidence  to  the  contrary  rests  on  the  de- 
fendant.154 

If,  in  an  action  by  a  subsequent  holder  against  the  maker,  it 
appears  that  the  instrument  has  been  altered,  the  burden  of 
showing  negligence  on  the  part  of  the  maker,155  and  a  pur- 
chase before  maturity,  for  value,  without  notice  of  the  altera- 
tion,156 rests  on  the  holder. 

719;  Rock  Island  Nat.  Bank  v.  Nelson,  41  Iowa,  563;  Emerson  v. 
Burns,  114  Mass.  348;  Little  v.  Mills,  98  Mich.  423,  425;  McDonald  v. 
Aufdengarten,  41  Neb.  40;  Knox  v.  Williams,  24  Neb.  630,  8  A.  S.  R. 
220;  Garland  v.  Lane,  46  N.  H.  245.  See,  however,  Baxter  v.  Ellis, 
57  Me.  178.  In  some  states,  an  indorsee  cannot  recover  on  a  negotiable 
instrument  affected  in  its  inception  with  certain  forms  of  illegality, 
even  though  he  took  it  for  value  before  maturity,  and  without  notice  of 
the  taint.  Hammon,  Cont.  §  254;  Ruddell  v.  Landers,  25  Ark.  238,  94 
A.  D.  719  (semble). 

Ultra  vires  note — Burden  on  holder  to  show  fcona  fide  purchase. 
Thompson  v.  West.  59  Neb.  677.  49  L.  R.  A.  337. 

Duress — Burden  on  holder  to  show  6ono  fide  purchase.  Clark  v. 
Pease,  41  N.  H.  414;  First  Nat.  Bank  v.  Green,  43  N.  Y.  298;  Beltz- 
hoover  v.  Blackstock,  3  Watts  (Pa.)  20,  27  A.  D.  330. 

Lost  or  stolen  paper — Burden  on  holder  to  show  ftona  fide  purchase. 
Union  Nat.  Bank.  v.  Barber,  56  Iowa,  559;  Devlin  v.  Clark,  31  Mo.  22; 
Beltzhoover  v.  Blackstock,  3  Watts  (Pa.)  20,  27  A.  D.  330.  The  rule 
is  otherwise  as  to  lost  or  stolen  bank  bills.  Here  the  defendant  must 
adduce  evidence  that  the  plaintiff  is  not  a  bona  fide  holder.  De  la 
Chaumette  v.  Bank  of  England,  2  Barn.  &  Adol.  385;  King  v.  Milsom, 
2  Camp.  5;  La.  Bank  v.  U.  S.  Bank,  9  Mart.  (La.)  398;  Wyer  v.  Dor- 
chester &  M.  Bank,  11  Gush.  (Mass.)  51,  59  A.  D.  137. 

The  rule  of  the  text  is  the  same,  whether  the  indorsement  is  general 
or  special.  Morgan  v.  Yarborough,  13  La.  74,  33  A.  D.  553. 

is*  Lake  v.  Reed,  29  Iowa,  258,  4  A.  R.  209;  Market  &  F.  Nat.  Bank  v. 
Sargent,  85  Me.  349,  35  A.  S.  R.  376;  Swett  v.  Hooper,  62  Me.  54;  Paton 
v.  Coit,  5  Mich.  505,  72  A.  D.  58  (semble) ;  Henry  v.  Sneed,  99  Mo.  407, 
17  A.  S.  R.  580,  586  (semble);  Johnson  v.  McMurry,  72  Mo.  278; 
Davis  v.  Bartlett,  12  Ohio  St.  534;  80  A.  D.  375. 

155  Conger  v.  Crabtree,  88  Iowa,  536,  45  A.  S.  R.  249. 


§  30f  AUTHORITY   AND   REGULARITY.  131 

If  a  member  of  a  commercial  partnership  signs  the  firm 
name  to  a  negotiable  instrument,  the  presumption  is,  in  the 
absence  of  evidence  to  the  contrary,  that  he  had  authority  to 
do  so,  and  that  he  exercised  the  authority  regularly,157  unless 
the  act  appears  to  be  without  the  scope  of  the  firm  business.158 

(f)  Alteration  of  instrument.  If  an  instrument  whose  exe- 
cution is  proved  or  admitted  bears  no  marks  of  alteration,  the 
burden  of  adducing  evidence  that  it  has  been  tampered  with 
rests  on  the  party  who  alleges  it.159 

Presumption  as  to  time  of  alteration.    If,  however,  the 

"6  Smith  v.  Eals,  81  Iowa,  235,  25  A.  S.  R.  486. 

lor  Miller  v.  Hines,  15  Ga.  197;  First  Nat.  Bank  v.  Carpenter,  34 
Iowa,  433;  Magill  v.  Merrie,  5  B.  Mon.  (Ky.)  168,  170;  Waldo  Bank  v. 
Greely,  16  Me.  419;  Thurston  v.  Lloyd,  4  Md.  283;  Littell  v.  Fitch,  11 
Mich.  525;  Carrier  v.  Cameron,  31  Mich.  373,  18  A.  R.  192;  Vallett  v. 
Parker,  6  Wend.  (N.  Y.)  615.  See,  however,  Lucas  v.  Baldwin,  97 
Ind.  471. 

This  presumption  does  not  arise  unless  the  name  signed  by  the  in- 
dividual partner,  or  some  other  circumstances,  indicate  a  partnership 
concern.  Mfrs.'  Bank  v.  Winship,  5  Pick.  (Mass.)  11,  16  A.  D.  369. 

IBS  Pease  v.  Cole,  53  Conn.  53,  55  A.  R.  53;  Bryan  v.  Tooke,  60  Ga.  437; 
Eastman  v.  Cooper,  15  Pick.  (Mass.)  276,  26  A.  D.  600. 

159  u.  S.  v.  Linn,  1  How.  (U.  S.)  104;  Sturm  v.  Boker,  150  U.  S.  312, 
340;  Montgomery  v.  Crossthwait,  90  Ala.  553,  24  A.  S.  R.  832;  Chism  v. 
Toomer,  27  Ark.  108;  Harris  v.  Jacksonville  Bank,  22  Fla.  501,  1 
A.  S.  R.  201;  Meikel  v.  State  Sav.  Inst,  36  Ind.  355;  Shroeder  v.  Web- 
ster, 88  Iowa,  627;  Davis  v.  Jenney,  1  Mete.  (Mass.)  221;  McClintock 
v.  State  Bank,  52  Neb.  130;  Riley  v.  Riley,  9  N.  D.  580;  Cosgrove  v. 
Fanebust,  10  S.  D.  213;  Smith  v.  Parker  (Tenn.  Ch.  App.)  49  S.  W. 
285,  288;  Kan.  Mut.  L.  Ins.  Co.  v.  Coalson,  22  Tex.  Civ.  App.  64,  67.  And 
see  Davis  v.  Fuller,  12  Vt.  178,  36  A.  D.  334. 

While  the  mere  fact  that  words  in  a  material  part  of  a  negotiable 
instrument  are  written  over  a  place  which  has  been  rubbed  or  scraped 
as  in  making  an  erasure  may  not  make  a  prima  facie  case  of  erasure, 
yet  if  the  writing  over  the  rough  space  appears  to  have  been  made  with 
a  different  pen,  different  ink,  or  in  a  different  hand,  or  if  the  words  so 
written  are  either  unproportionally  crowded  or  extended  to  fit  the  rough 
space,  a  presumption  of  erasure  arises.  Nagle's  Estate,  134  Pa.  31,  19 
A.  S.  R.  669.  See,  generally,  7  Current  Law,  118. 


132  LAW   OF  EVIDENCE.  g  3Qf 

instrument  bears  evident  marks  of  having  been  altered  from 
the  original  draft,  a  presumption  may  arise  concerning  the  time 
when  the  change  was  made,  as  to  whether  before  or  after  exe- 
cution and  delivery  of  the  writing,  and  the  burden  of  adduc- 
tion be  thereby  changed.  The  cases  on  this  subject  are  in  hope- 
less conflict. 

For  the  purpose  of  determining  whether  a  writing  is  ad- 
missible in  evidence,  it  is  held  in  some  courts  that,  if  the  in- 
strument has  apparently  been  altered  from  the  original  draft, 
a  presumption  arises  that  the  change  was  made  after  execu- 
tion, and  the  instrument  will  not  be  admitted  in  evidence  as 
a  document  touching  the  right  to  which  the  alteration  relates, 
unless  accompanied  by  evidence  which  tends  to  explain  the 
change.160  In  other  courts,  a  presumption  prevails  that  the 
alteration  was  made  at  or  before  the  execution  of  the  instru- 
ment, and  the  writing  is  therefore  admissible  in  evidence  with- 
out explanation,161  unless  the  character  of  the  alteration  is 

160  Deed.     Pipes  v.  Hardesty,  9  La.  Ann.  152,  61  A.  D.  202;  Simpkins 
v.  Windsor,  21  Or.  382;  Bullock  v.  Sprowls  (Tex.  Civ.  App.)   54  S.  W. 
657. 

Negotiable  instrument.  Merritt  v.  Boyden,  191  111.  136,  154,  85  A. 
S.  R.  246,  258  (semble);  Courcamp  v.  Weber,  39  Neb.  533;  Nagle's  Es- 
tate, 134  Pa.  31.  19  A.  S.  R.  669. 

161  Little  v.  Herndon,  10  Wall.  (U.  S.)  26  (land  patent);  Orlando  v. 
Gooding,  34  Fla.  244  (bond);  First  Nat.  Bank  v.  Franklin,  20  Kan.  264 
(order  of  sale);   Foley-Wadsworth  Imp.  Co.  v.   Solomon,  9  S.  D.  511 
(guaranty). 

Deed.  Ward  v.  Cheney,  117  Ala.  238;  Kendrick  v.  Latham,  25  Fla. 
819;  Bedgood  v.  McLain,  89  Ga.  793;  Sirrine  v.  Briggs,  31  Mich.  443; 
Hoey  v.  Jarman,  39  N.  J.  Law,  523;  Rodriguez  v.  Haynes,  76  Tex.  225. 

Negotiable  instrument.  Stayner  v.  Joyce,  120  Ind.  99;  Neil  v.  Case, 
25  Kan.  510,  37  A.  R.  259;  Wilson  v.  Hotchkiss'  Estate,  81  Mich.  172; 
Stillwell  v.  Patton,  108  Mo.  352;  Moddie  v.  Breiland,  9  S.  D.  506;  Sea- 
man v.  Russell,  20  Vt.  205,  49  A.  D.  775  (semble);  Yakima  Nat.  Bank 
v.  Knipe,  6  Wash.  348. 

Receipt.  Welch  v.  Coulborn,  3  Houst.  (Del.)  647;  Printup  v.  Mitchell, 
17  Ga.  558,  63  A.  D.  258  (semble). 


§  30f  AUTHORITY   AND   REGULARITY.  133 

suspicious  in  itself,  in  which  case  a  presumption  arises  that  the 
change  was  made  after  execution,  and  the  document  will  not 
be  admitted  unless  accompanied  by  evidence  in  explanation 
of  the  change.162  In  other  cases  no  presumption  is  indulged,163 
so  that  ordinary  proof  of  execution  entitles  the  instrument  to 
admission  in  evidence  without  any  preliminary  explanation;164 
and  this  has  been  allowed  even  where  the  alteration  was  in- 
trinsically suspicious,165  the  question  of  the  time  of  alteration 
being  left  to  the  jury. 

Thus  far  the  presumption  has  been  considered  in  its  bear- 
ing on  the  admissibility  of  the  document  in  evidence.  The 
presumption  is  next  to  be  considered,  not  as  bearing  on  the 
admissibility  of  the  document,  but  as  affecting  the  right  to 
recover  on  a  document  which  had  been  admitted.  Some  cases 
hold  that,  in  the  absence  'of  evidence  to  the  contrary,  an  ap- 
parent alteration  is  presumed  to  have  been  made  after  deliv- 

102  Kan.  Mut.  L.  Ins.  Co.  v.  Coalson,  22  Tex.  Civ.  App.  64,  68  (policy) ; 
Bradley  v.  Dells  Dumber  Co.,  105  Wis.  245  (receipt). 

Bond.  Orlando  v.  Gooding,  34  Fla.  244;  Nesbitt  v.  Turner,  155  Pa. 
429. 

Deed.  Ala.  State  Land  Co.  v.  Thompson,  104  Ala.  570,  53  A.  S.  R. 
80;  Collins  v.  Ball,  82  Tex.  259,  27  A.  S.  R.  877. 

Negotiable  instrument.  Neil  v.  Case,  25  Kan.  510,  37  A.  R.  259  (sem- 
ble);  Wilson  v.  Hotchkiss'  Estate,  81  Mich.  172;  Stillwell  v.  Patton, 
108  Mo.  352. 

IBS  Klein  v.  German  Nat.  Bank,  69  Ark.  140,  86  A.  S.  R.  183  (negotia- 
ble instrument);  Printup  v.  Mitchell,  17  Ga.  558,  63  A.  D.  258  (sem- 
ble;  receipt). 

i«*  Printup  v.  Mitchell,  17  Ga.  558,  63  A.  D.  258  (semble;  receipt); 
Cosgrove  v.  Fanebust,  10  S.  D.  213  (deed);  Conner  v.  Fleshman,  4 
W.  Va.  693  (bond). 

Negotiable  instrument.  Klein  v.  German  Nat.  Bank,  69  Ark.  140, 
86  A.  S.  R.  183;  Stayner  v.  Joyce,  120  Ind.  99;  Cole  v.  Hills,  44  N.  H. 
227;  Hunt  v.  Gray,  35  N.  J.  Law,  227,  10  A.  R.  232;  Beaman  v.  Rus- 
sell, 20  Vt.  205,  49  A.  D.  775. 

IBS  Welch  v.  Coulborn,  3  Houst.  (Del.)  647  (receipt);  Rodriguez  v. 
Haynes,  76  Tex.  225  (deed). 


134  LAW   OF   EVIDENCE.  §   30f 

ery.  The  burden  of  showing  the  contrary  is  accordingly  on 
the  party  claiming  under  the  instrument,  and,  if  he  does  not 
explain  the  alteration,  he  cannot  recover  on  the  writing.168 
Other  courts  hold  that,  in  the  absence  of  evidence  to  the  con- 
trary, the  presumption  is  that  an  apparent  alteration  was  made 
at  the  time  of  or  before  the  execution  of  the  instrument,  so 
that  the  burden  of  establishing  the  contrary  is  on  the  party 
who  attacks  the  instrument  as  introduced,  and  that,  in  the 
absence  of  such  evidence,  the  holder  may  recover,167  unless  the 

leeprevost  v.  Gratz,  1  Pet.  C.  C.  364,  Fed.  Gas.  No.  11,406  (account). 

Bond.  U.  S.  v.  Linn,  I  How.  (U.  S.)  104;  Robinson  v.  State,  60 
Ind.  26,  36  (semble) ;  State  v.  Chick,  146  Mo.  645;  Hodnett's  Adm'x  v. 
Pace's  Adm'r,  84  Va.  873. 

Contract.  Walters  v.  Short,  10  111.  252  (semble) ;  Kelly  v.  Thuey,  143 
Mo.  422. 

Deed.  Galland  v.  Jackman,  26  Gal.  79,  85  A.  D.  172;  Burnham  v. 
Ayer,  35  N.  H.  351;  Dow  v.  Jewell,  18  N.  H.  340,  45  A.  D.  371. 

Negotiable  instrument.  Henman  v.  Dickinson,  5  Bing.  183;  Bishop 
v.  Chambre,  3  Car.  &  P.  55;  Knight  v.  Clements,  8  Adol.  &  E.  215; 
Chism  v.  Toomer,  27  Ark.  108;  Warren  v.  Layton,  3  Har.  (Del.)  404; 
Harris  v.  Jacksonville  Bank,  22  Fla.  501,  1  A.  S.  R.  201  (semble); 
Adair  v.  Egland,  58  Iowa,  314;  Dodge  v.  Haskell,  69  Me.  429;  Com- 
mercial &  R.  Bank  v.  Lum,  7  How.  (Miss.)  414;  Hills  v.  Barnes,  11 
N.  H.  395;  Cole  v.  Hills,  44  N.  H.  227;  Neff  v.  Homer,  63  Pa.  327,  3  A. 
R.  555,  556  (semble);  Clark  v.  Eckstein,  22  Pa.  507,  62  A.  D.  307; 
Paine  v.  Edsell,  19  Pa.  '178;  Kennedy  v.  Moore,  17  S.  C.  464;  Slater 
v.  Moore,  86  Va.  26. 

Will.  Simmons  v.  Rudall,  1  Sim.  (N.  S.)  115,  136;  Doe  d.  Shallcross 
v.  Palmer,  15  Jur.  (pt.  1)  836;  Toebbe  v.  Williams,  80  Ky.  661.  And 
see  Cutler  v.  Cutler,  130  N.  C.  1,  57  L.  R.  A.  209. 

In  some  states,  the  burden  of  proof  rests  on  the  party  claiming 
under  the  instrument,  if  execution  is  expressly  denied,  and  only  then. 
Winkles  v.  Guenther,  98  Ga.  472  (negotiable  instrument) ;  Thompson 
v.  Gowen,  79  Ga.  70  (bond);  Wing  v.  Stewart,  68  Iowa,  13  (contract). 

lerBoothby  v.  Stanley,  34  Me.  515  (sheriff's  return);  North  River 
Meadow  Co.  v.  Christ  Church,  22  N.  J.  Law,  424,  53  A.  D.  258  (assess- 
ment) ;  Wikoff's  Appeal,  15  Pa.  281,  53  A.  D.  597  (will) ;  Kan.  Mut.  L. 
Ins.  Co.  v.  Coalson,  22  Tex.  Civ.  App.  64,  68  (semble;  policy). 

Bond.     Brand  v.  Johnrowe,  60  Mich.  210;   Pullen  v.  Shaw,  14  N.  C. 


§  30f  AUTHORITY   AND   REGULARITY.  135 

alteration  is  of  a  character  to  excite  suspicion,  in  which  case 
the  burden  of  adducing  evidence  in  explanation  of  the  altera- 
tion rests  on  the  party  claiming  under  the  instrument,  so 
that,  unless  he  explains,  the  instrument  will  not  sustain  a  re- 
covery in  his  favor.168  Yet  other  courts  hold  that  there  is  no 
presumption  in  the  matter,189  some  holding  this  apparently 
only  where  the  alteration  is  of  a  suspicious  character.170 

(3  Dev.)  238;  Wicker  v.  Pope,  12  Rich.  Law  (S.  C.)  387,  75  A.  D.  732; 
Kleeb  v.  Bard,  12  Wash.  140. 

Deed.  Doe  d.  Tatum  v.  Catomore,  16  Q.  B.  745;  Cox  v.  Palmer,  1 
McCrary,  431,  3  Fed.  16;  Lewis  v.  Watson,  98  Ala.  479,  39  A.  S.  R.  82; 
Sharpe  v.  Orne,  61  Ala.  263;  Peugh  v.  Mitchell,  3  App.  D.  C.  321; 
Stewart  v.  Preston,  1  Fla.  10,  44  A.  D.  621;  Wickes'  Lessee  v.  Caulk,  5 
Har.  &  J.  (Md.)  36;  McCormick  v.  Fitzmorris,  39  Mo.  24. 

Negotiable  instrument.  Corcoran  v.  Doll,  32  Cal.  82;  Bailey  v.  Tay- 
lor, 11  Conn.  531,  534,  29  A.  D.  321;  Portsmouth  Sav.  Bank  v.  Wilson, 
5  App.  D.  C.  8;  Wilson  v.  Hayes,  40  Minn.  531,  12  A.  S.  R.  754;  Para- 
more  v.  Lindsey,  63  Mo.  63;  Huntington  v.  Finch,  3  Ohio  St.  445;  New- 
man v.  King,  54  Ohio  St.  273,  56  A.  S.  R.  705,  709  (semble);  Franklin 
v.  Baker,  48  Ohio  St.  296,  29  A.  S.  R.  547;  Richardson  v.  Fellner,  9 
Okl.  513;  Wolferman  v.  Bell,  6  Wash.  84,  36  A.  S.  R.  126;  Maldaner 
v.  Smith,  102  Wis.  30. 

If  the  alteration  is  properly  noted  in  the  attestation  clause,  then 
of  course  no  presumption  of  irregularity  arises.  Smith  v.  U.  S..  2 
Wall.  (U.  S.)  219,  232. 

If  an  instrument  admitted  in  evidence  in  the  trial  is  not  produced 
for  inspection  by  the  supreme  court,  that  court  will  presume,  on  ap- 
peal, that  the  instrument  bore  no  apparent  alteration,  or  that  the  al- 
teration was  not  of  a  suspicious  character.  Ward  v.  Cheney,  117  Ala. 
238;  Merritt  v.  Boyden,  191  111.  136,  85  A.  S.  R.  246;  Wing  v.  Stewart, 
68  Iowa,  13;  Sirrine  y.  Briggs,  31  Mich.  443;  Robinson  v.  Myers,  67 
Pa.  9. 

"8  Smith  v.  U.  S.,  2  Wall.  (U.  S.)  219,  232  (bond);  Wilde  v.  Arms- 
by,  6  Cush.  (Mass.)  314  (guaranty) ;  Elgin  v.  Hall,  82  Va.  680  (receipt). 

Deed.  Cox  v.  Palmer,  1  McCrary,  431,  3  Fed.  16;  Bailey  v.  Taylor, 
11  Conn.  531,  29  A.  D.  321,  326  (semble);  Peugh  v.  Mitchell,  3  App. 
D.  C.  321;  Jackson  v.  Osborn,  2  Wend.  (N.  Y.)  555,  20  A.  D.  649. 

Negotiable  instrument.  Fontaine  v.  Gunter,  31  Ala.  258,  265;  Para- 
more  v.  Lindsey,  63  Mo.  63;  Simpson  v.  Stackhouse,  9  Pa.  186,  49 
A.  D.  554. 


136  LAW   OF  EVIDENCE..  §  3Qf 

If  alterations  appear  in  a  public  record,  the  presumption  is 
that  they  were  regularly  made  by  the  officer  having  the  cus- 
tody of  the  record,  and  not  that  they  were  unauthorized,  un- 
less their  nature  is  such  as  to  excite  suspicion  of  their  regu- 
larity.171 

Presumption  as  to  who  made  alteration.  In  the  ab- 
sence of  evidence  to  the  contrary,  the  presumption  is  that  an 
unauthorized  alteration  of  an  instrument  was  made  by  the 
party  claiming  under  it  or  his  privies,  especially  where  it  has 
been  in  his  or  their  custody  since  execution.172 

169  Klein  v.  German  Nat.  Bank,  69  Ark.  140,  86  A.  S.  R.  183  (nego^ 
tiable  instrument) ;  Hagan  v.  Merchants'  &  B.  Ins.  Co.,  81  Iowa,  321,  25 
A.  S.  R.  493  (policy).  And  see  Johnson  v.  Marlborough,  2  Starkie,  313. 

Deed.  Catlin  Coal  Co.  v.  Lloyd,  180  111.  398,  72  A.  S.  R.  216;  Milliken 
v.  Marlin,  66  111.  13. 

In  some  states  where  there  is  said  to  be  no  presumption  either  way 
as  to  the  time  of  alteration,  the  burden  of  adducing  evidence  that  the 
alteration  was  made  after  delivery  of  the  instrument  rests  on  the  party 
asserting  it.  Hagan  v.  Merchants'  &  B.  Ins.  Co.,  81  Iowa,  321,  25  A.  S. 
R.  493.  Contra,  Klein  v.  German  Nat.  Bank,  69  Ark.  140,  86  A.  S.  R. 
183.  In  other  states  it  lies  on  the  party  claiming  under  the  instru- 
ment to  show  that  the  alteration  was  made  before  execution  (Ely  v. 
Ely,  6  Gray  [Mass.]  439;  Robinson  v.  Myers,  67  Pa.  9,  16),  especially 
if  the  alteration  is  suspicious  (Catlin  Coal  Co.  "v.  'Lloyd,  180  111.  398, 
72  A.  S.  R.  216;  Paramore  v.  Lindsey,  63  Mo.  63,  67;  Page  v.  Danaher, 
43  Wis.  221). 

ITO  Paramore  v.  Lindsey,  63  Mo.  63,  67  (negotiable  instrument); 
Robinson  v.  Myers,  67  Pa.  9,  16  (deed);  Page  v.  Danaher,  43  Wis.  221 
(negotiable  instrument). 

171  Hommel  v.  Devinney,  39  Mich.  522.     See,  however,  Dolph  v.  Bar- 
ney, 5  Or.  191. 

172  Winter  v.  Pool,  100  Ala.  503;   Ala.  State  Land  Co.  v.  Thompson, 
104  Ala.  570,  53  A.  S.  R.  80;  Andrews  v.  Galloway,  50  Ark.  358   (sem- 
ble) ;    Bowman   v.   Mitchell,   79   Ind.   84;    Maguire   v.    Eichmeier,   109 
Iowa,  301;  Shroeder  v.  Webster,  88  Iowa,  627;  Croft  v.  White,  36  Miss. 
455;  Bowers  v.  Jewell,  2  N.  H.  543;  Nat.  Ulster  County  Bank  v.  Mad- 
den, 114  N.  Y.  280,  11  A.  S.  R.  633;  Vaughan  v.  Fowler,  14  S.  C.  355, 
37  A.  R.  731,  733;   Porter  v.  Doby,  2  Rich.  Eq.  (S.  C.)   49;   Bowser  v. 
Cole,  74  Tex.  222.     Contra,  Coulson  v.  Walton,  9  Pet.   (U.  S.)   62,  78; 


§  31  CAPACITY  OF  INFANTS.  137 

Presumption  as  to  intent.  If,  after  delivery  of  an  in- 
strument, a  material  alteration  is  intentionally  made  therein 
by  the  holder,  the  presumption  is  that  the  change  was  made 
fraudulently,  and  there  can  be  no  recovery  on  the  instru- 
ment.178 

Rebuttal  of  presumptions — Questions  for  jury.  These 

presumptions  being  disputable,  evidence  is  admissible  to  rebut 
them,  and,  when  evidence  in  rebuttal  has  been  adduced,  the 
question  when,  by  whom,  and  with  what  intent  the  alteration 
was  made  is  to  be  submitted  to  the  jury  upon  all  the  evidence, 
intrinsic  and  extrinsic.174 

C.    CAPACITY    OF   INFANTS.1" 

§  31.    Crimes. 

The  presumption  is  that  a  person  under  fourteen  years  of 
age  cannot  commit  crime.  During  those  years  he  is  presumed 

Davis  v.  Carlisle,  6  Ala.  707;  Willard  v.  Ostrander,  51  Kan.  481,  37  A, 
S.  R.  294;  Phillips  v.  Breck's  Ex'r,  79  Ky.  465;  Wickes'  Lessee  v.  Caulk, 
5  Har.  &  J.  (Md.)  36,  41.  See,  also,  7  Current  Law,  119. 

ITS  Shroeder  v.  Webster,  88  Iowa,  627. 

This  is  a  conclusive  presumption,  so-called,  in  an  action  on  the 
instrument.  Owen  v.  Hall,  70  Md.  97,  99.  But  it  is  rebuttable  in  an 
action  on  the  original  indebtedness  evidenced  by  the  instrument. 
Warder  v.  Willyard,  46  Minn.  531,  24  A.  S.  R.  250. 

An  immaterial  alteration  is  not  presumed  to  have  been  fraudulently 
made,  however.  Croswell  v.  Labree,  81  Me.  44,  10  A.  S.  R.  238;  Dow  v. 
Jewell,  18  N.  H.  340,  45  A.  D.  371. 

"4  Klein  v.  German  Nat.  Bank,  69  Ark.  140,  86  A.  S.  R.  183;  Printup 
v.  Mitchell,  17  Ga.  558,  63  A.  D.  258;  Winkles  v.  Guenther,  98  Ga. 
472;  Catlin  Coal  Co.  v.  Lloyd,  180  111.  398,  72  A.  S.  R.  216;  Neil  v.  Case, 
25  Kan.  510,  37  A.  R.  259;  Letcher  v.  Bates,  6  .J.  J.  Marsh.  (Ky.) 
524,  22  A.  D.  92  (semble) ;  Pipes  v.  Hardesty,  9  La.  Ann.  152,  61  A.  D. 
202;  Milbery  v.  Storer,  75  Me.  69,  46  A.  R.  361;  Ely  v.  Ely,  6  Gray 
(Mass.)  439,  442;  Wilson  v.  Hotchkiss'  Estate,  81  Mich.  172;  Wilson 
v.  Hayes,  40  Minn.  531,  12  A.  S.  R.  754;  Commercial  &  R.  Bank  v. 
Lum,  7  How.  (Miss.)  414;  Courcamp  v.  Weber,  39  Neb.  533;  Cole  v. 
Hills,  44  N.  H.  227;  Hunt  v.  Gray,  35  N.  J.  Law,  227,  10  A.  R.  232; 
Robinson  v.  Myers,  67  Pa.  9;  Moddie  v.  Breiland,  9  S.  D.  507;  Beaman 
v.  Russell,  20  Vt.  205,  49  A.  D.  775. 


138  LAW   OF   EVIDENCE.  §  31 

to  be  so  lacking  in  discretion  as  to  be  incapable  in  law  of  en- 
tertaining a  criminal  intent.  This  presumption  is  always  a 
presumption  of  law;  sometimes  it  is  conclusive;  sometimes 
disputable.  If  the  infant  is  under  seven  years  of  age  when 
the  act  was  done,  the  presumption  is  conclusive  that  he  waa 
incapable  of  entertaining  a  criminal  intent.  Being  conclusive, 
evidence  is  not  admissible  to  show  precocity,  and  the  lack  of 
years  is  accordingly  a  complete  defense.176 

If  the  infant  has  attained  to  the  age  of  seven,  but  is  under 
fourteen,  the  presumption  of  incapacity  is  disputable.  The 
only  effect  of  the  presumption  is  to  throw  the  burden  on  the 
state  of  showing  by  clear  and  satisfactory  evidence  that  in 
fact  the  infant  had  sufficient  discretion  to  distinguish  between 
right  and  wrong,  and  to  comprehend  the  nature  and  conse- 
quences of  the  act  in  question;  and  when  such  evidence  is  ad- 
duced, the  question  of  criminal  capacity  becomes  a  question 
for  the  jury.177 

175  Presumptions  touching  the  relation  of  parent  and  child,  see   §J 
70-73,  infra. 

176  Rex  v.  King's  Langley,  1  Strange,  631;  Marsh  v.  Loader,  14  C.  B. 
(N.  S.)   535;   Heilman  v.  Com.,  84  Ky.  457,  4  A.  S.  R.  207    (semble); 
Willet  v.  Com.,  13  Bush   (Ky.)   230   (semble) ;   State  v.  Aaron,  4  N.  J. 
Law,  231,  ,7  A.  D.  592,  596;    People  v.  Townsend,  3  Hill   (N.  Y.)   479; 
State  v.  Goin,  9  Humph.   (Tenn.)   174   (semble);  Law  v.  Com.,  75  Va. 
885,  40  A.  R.  750,  752   (semble) ;  Long,  Dom.  Rel.  372. 

177  Rex  v.  Owen,  4  Car.  &  P.  236;  Reg.  v.  Vamplew,  3  Fost.  &  F.  520; 
Reg.  v.  Smith,  1  Cox  Cr.  Cas.  260;  Godfrey  v.  State,  31  Ala.  323,  70  A. 
D.  494;   Martin  v.  State,  90  Ala.  602,  24  A.  S.  R.  844;   McCormack  V. 
State,  102  Ala.  156;   Angelo  v.  People,  96  111.  209,  36  A.  R.  132;   State 
v.  Fowler,  52  Iowa,  103;  State  v.  Milholland,  89  Iowa,  5  (semble);  Wil- 
let v.  Com.,  13  Bush  (Ky.)  230;  Heilman  v.  Com.,  84  Ky.  457,  4  A.  S.  R. 
207;    State  v.   Nickleson,  45  La.  Ann.  1172;    Com.  v.   Mead.  10  Allen 
(Mass.)  398;  State  v.  Adams,  76  Mo.  355;  State  v.  Aaron,  4  N.  J.  Law, 
231,  7  A.  D.  592;  State  v.  Yeargan,  117  N.  C.  706,  36  L.  R.  A.  196;  State 
v.   Pugh,   52  N.   C.    (7  Jones)    61;    State  v.  Goin,  9   Humph.    (Tenn.) 
174;  Carr  v.  State,  24  Tex.  App.  562,  5  A.  S.  R.  905;  State  v.  Learnard, 


§  31  CAPACITY   OF   INFANTS.  139- 

Similar  presumptions  prevail  in  certain  classes  of  cases  in- 
volving sexual  intercourse.  A  male  under  fourteen  was  con- 
clusively presumed  at  common  law  to  be  incapable  of  sexual 
intercourse;  therefore  he  could  not  commit  rape,  nor  attempt 
to  commit  it,  and  evidence  of  puberty  in  a  boy  of  fewer  years, 
was  accordingly  inadmissible.178  In  the  United  States,  how- 
ever, the  weight  of  authority  regards  this  presumption  as  dis- 
putable, and  the  only  effect  of  the  presumption  is  to  throw 
the  burden  on  the  state  of  adducing  evidence  of  sexual  capac- 
ity, which  evidence,  being  adduced,  makes  the  question  one 
for  the  jury.179 

41  Vt.  585;  Law  v.  Com.,  75  Va.  885,  40  A.  R.  750.  And  see  Irby  v. 
State,  32  Ga.  496;  Long,  Dom.  Rel.  372. 

This  presumption  decreases  in  strength  as  the  infant  approaches  the 
age  of  14.  Martin  v.  State,  90  Ala.  602,  24  A.  S.  R.  844;  State  v. 
Aaron,  4  N.  J.  Law,  231,  7  A.  D.  592,  596;  Law  v.  Com.,  75  Va.  885,  40- 
A.  R.  750.  752. 

The  question  of  capacity  may  be  determined  indirectly  from  the 
facts  and  circumstances  incidentally  in  evidence,  without  independent 
evidence  on  the  question.  State  v.  Toney,  15  S.  C.  409;  Carr  v.  State, 
24  Tex.  App.  562,  5  A.  S.  R.  905;  Wusnig  v.  State,  33  Tex.  651;  Law  v. 
Com.,  75  Va.  885.  40  A.  R.  750,  752  (semble). 

ITS  Clark  &  M.  Crimes  (2d  Ed.)  §  129;  Reg.  v.  Brimilow,  9  Car.  &  P. 
366;  Reg.  v.  Waite  [1892]  2  Q.  B.  600  (semble) ;  State  v.  Handy,  4  Har. 
(Del.)  566  (semble);  McKinney  v.  State,  29  Fla.  565,  30  A.  S.  R.  140 
(semble);  State  v.  Pugh,  52  N.  C.  (7  Jones)  61;  State  v.  Sam,  60  N.  C. 
(1  Winst.  300)  293;  Foster  v.  Com.,  96  Va.  306,  70  A.  S.  R.  846.  And 
see  Williams  v.  State,  20  Fla.  777.  He  may,  however,  be  convicted  of 
aiding  in  the  offense,  at  common  law.  Heilman  v.  Com.,  84  Ky.  457,  4 
A.  S.  R.  207,  209  (semble) ;  Law  v.  Com.,  75  Va.  885,  40  A.  R.  750. 

The  same  presumption  of  incapacity  applies  in  cases  of  carnal  abuse. 
Reg.  v.  Jordan,  9  Car.  &  P.  118. 

In  Louisiana  it  seems  that  no  presumption  whatever  obtains.  In 
any  event,  there  is  no  conclusive  presumption  of  incapacity  arising  from 
nonage.  State  v.  Jones,  39  La.  Ann.  935.  . 

ITS  Gordon  v.  State,  93  Ga.  531,  44  A.  S.  R.  189;  Heilman  v.  Com., 
84  Ky.  457,  4  A.  S.  R.  207;  People  v.  Randolph,  2  Parker  Cr.  R.  (N.  Y.) 
174;  Williams  v.  State,  14  Ohio,  222,  45  A.  D.  536;  Wagoner  v.  State,  & 
Lea  (Tenn.)  352,  40  A.  R.  36.  And  see  McKinney  v.  State,  29  Fla. 
565,  30  A.  S.  R.  140.  144. 


140  LA.W   OF  EVIDENCE.  g  32 

At  common  law,  a  boy  under  fourteen  years  of  age  could 
not  be  guilty  of  assault  with  intent  to  commit  rape.180  This 
is  not  the  modern  rule,  however,181  though  in  some  states  the 
burden  is  on  the  prosecution  to  show  sexual  capacity  in  order 
that  a  conviction  may  be  had.182 

These  ages  of  incapacity  are  in  some  states  changed  by 
statute. 

If  the  accused  desires  the  benefit  of  the  presumption  of 
sexual  incapacity,  the  burden  is  on  him  to  show  that  he  is 
of  such  age  that  the  presumption  arises.183 

Beyond  the  age  of  fourteen  years,  no  presumption  of  in- 
capacity attaches,  and  the  burden  is  accordingly  upon  an 
infant  over  that  age  to  show  a  want  of  capacity,  the  same 
as  if  he  were  an  adult.184 

§  32.    Torts. 

The  presumptions  of  incapacity  to  commit  crime  do  not 
prevail  with  reference  to  torts.  Accordingly,  an  infant  is, 
as  a  rule,  liable  for  a  tort  the  same  as  an  adult,  subject  only 
to  his  being  in  fact  of  such  age  and  discretion  that  he  can 
have  a  wrongful  intention,  where  such  an  intention  is  mate- 

A  statute  dispensing  with  proof  of  emission  does  not  change  the 
rule.  Hiltabiddle  v.  State,  35  Ohio  St.  52,  35  A.  R.  592. 

iso  Rex  v.  Eldershaw,  3  Car.  &  P.  396;  Reg.  v.  Philips,  8  Car.  &  P. 
736;  State  v.  Handy,  4  Har.  (Del.)  566  (semble);  State  v.  Sam,  60 
N.  C.  (1  Winst.  300)  293.  He  might,  however,  be  convicted  of  com- 
mon assault.  Reg.  v.  Brimilow,  9  Car.  &  P.  366;  Reg.  v.  Philips,  8 
Car.  &  P.  736;  Long,  Dom.  Rel.  372. 

isi  Com.  v.  Green,  2  Pick.  (Mass.)  380;  Law  v.  Com.,  75  Va.  885,  40 
A.  R.  750,  751  (semble). 

i82McKinny  v.  State,  29  Fla.  565,  30  A.  S.  R.  140;  Gordon  v.  State, 
93  Ga.  531,  44  A.  S.  R.  189. 

isa  state  v.  Arnold,  35  N.  C.  (13  Ired.)  184. 

is*  State  v.  Handy,  4  Har.  (Del.)  566;  Chandler  v.  Com.,  4  Mete. 
(Ky.)  66;  State  v.  Kluseman,  53  Minn.  541;  Den  d.  Boyd  v.  Banta, 
1  N.  J.  Law,  266;  People  v.  Kendall,  25  Wend.  (N.  Y.)  399,  37  A.  D.  240 
(semble);  State  v.  Goin,  9  Humph.  (Tenn.)  174  (semble);  State  v. 
Learnard,  41  Vt.  585. 


§  32  CAPACITY  OF  INFANTS.  141 

rial,185  and  the  infant  is  nevertheless  liable,  though  he  was 
under  seven  years  of  age  when  the  wrong  was  done.188 

In  cases  where  an  infant  sues  an  adult  for  negligence,  how- 
ever, this  rule  is  not  applied  so  as  to  permit  of  the  defense  of 
contributory  negligence,  if  the  infant  was  so  young  as  to 
be  without  discretion.  Accordingly,  in  some  cases  it  has  been 
ruled  that  the  infant  in  question  was,  because  of  his  tender 
years,  incapable,  as  a  matter  of  law,  of  contributory  negli- 
gence.187 In  other  cases  the  infant  has  been  held  capable, 
as  a  matter  of  law,  of  exercising  discretion.188  In  the  ma- 

issHammon,  Cont.  §  168;  Peterson  v.  Haffner,  59  Ind.  130,  26  A.  R. 
81;  Conway  v.  Reed,  66  Mo.  346,  27  A.  R.  354;  School  Dist.  v.  Brag- 
don,  23  N.  H.  507;  Bullock  v.  Babcock,  3  Wend.  (N.  Y.)  391.  See  Shaw 
v.  Coffin,  58  Me.  254,  4  A.  R.  290;  Sikes  v.  Johnson,  16  Mass.  389;  El- 
well  v.  Martin,  32  Vt.  217.  However,  the  presumption  is  that  a  boy 
under  14  years  of  age  is  not  competent  to  perform  duties  involving 
the  personal  safety  of  others,  and  requiring  the  exercise  of  a  good 
degree  of  judgment  and  discretion  and  constant  care  and  watchful- 
ness; and  in  an  action  for  injuries  resulting  from  negligence  of  a 
boy  so  employed,  the  burden  is  on  his  employer  to  show  that  he  was 
in  fact  competent.  Molaske  v.  Ohio  Coal  Co.,  86  Wis.  220. 

IBB  Huchting  v.  Engel,  17  Wis.  230,  84  A.  D.  741. 

"7  Evansville  v.  Senhenn,  151  Ind.  42,  68  A.  S.  R.  218;  Chicago  W. 
Div.  R.  Co.  v.  Ryan,  131  111.  474  (17  months);  Schmidt  v.  M.  &  St. 
P.  R.  Co.,  23  Wis.  186,  99  A.  D.  158  (18  months);  Kay  v.  Pa.  R.  Co., 
65  Pa.  269,  3  A.  R.  628  (19  months);  Bottoms  v.  S.  &  R.  R.  Co.,  114 
N.  C.  699,  41  A.  S.  R.  799  (22  months);  Walters  v.  C.,  R.  I.  &  P.  R. 
Co.,  41  Iowa,  71  (2  years);  Norfolk  &  P.  R.  Co.  v.  Ormsby,  27  Grat. 
(Va.)  455  (2  years,  10  months);  Barnes  v.  S.  C.  R.  Co.,  47  La.  Ann. 
1218,  49  A.  S.  R.  400  (3  years);  Ihl  v.  F.  S.  St.  &  G.  St.  F.  R.  Co., 
47  N.  Y.  317,  7  A.  R.  450  (3  years,  2  months) ;  Mangam  v.  B.  R.  Co., 
38  N.  Y.  455,  98  A.  D.  66  (3  years,  7  months);  McGary  v.  Loomis,  63 
N.  Y.  104,  20  A.  R.  510  (4  years) ;  Summers  v.  Bergner  Brew.  Co.,  143 
Pa.  114,  24  A.  S.  R.  518  (4  years). 

It  has  been  held  that  a  child  under  6  years  of  age  is  prima  facie  in- 
capable of  contributory  negligence.  Hence  the  burden  of  showing  him 
capable  is  on  the  defendant.  Chicago  City  R.  Co.  v.  Tuohy,  196  111.  410, 
58  L.  R.  A.  270. 

iss Hughes  v.  Macfle,  33  Law  J.  Exch.  177  (5  years);  Gleason  v. 
Smith,  180  Mass.  6,  91  A.  S.  R.  261  (12  years). 


142  LAW   OF  EVIDENCE.  §  32 

jority  of  cases,  however,  where  capacity  was  more  in  doubt, 
the  question  of  discretion  has  been  left  to  the  jury.189  It 
is  to  be  observed  that  there 'is  no  presumption  of  law  on  the 
question,  either  one  way  or  the  other.  Each  case  must  be 
decided  with  reference  to  its  own  peculiar  facts.  One  child 
may  have  a  discretion  which  is  found  lacking  in  another  of 
the  same  age,  and  may  accordingly  be  held  to  greater  care. 
Again,  a  child  may  have  sufficient  discretion  to  require  it 
to  act  carefully  under  some  circumstances,  while  under  dif- 
ferent circumstances  it  may  be  wholly  incapable  of  judging 
for  itself.  To  lay  down  a  rule  governing  all  cases  is  therefore 
impossible. 

The  foregoing  remarks  apply  to  children  of  tender  years. 
If  an  infant  has  attained  to  the  age  of  fourteen  years,  the  pre- 
sumption is,  in  the  absence  of  clear  evidence  to  the  contrary, 
that  he  has  sufficient  intelligence  to  avoid  danger.190 

iss  Lynch  v.  Smith,  104  Mass.  52,  6  A.  R.  188  (4  years,  7  months) ; 
Westbrook  v.  M.  &  0.  R.  Co.,  66  Miss.  560,  14  A.  S.  R.  587  (4  or  5 
years) ;  Birge  v.  Gardner,  19  Conn.  507  (6  or  7  years);  Wash.  &  G.  R. 
Co.  v.  Gladmon,  15  Wall.  (U.  S.)  401  (7  years);  Indianapolis,  P.  &  C. 
R.  Co.  v.  Pitzer,  109  Ind.  179,  58  A.  R.  387  (7  years);  Dealey  v.  Muller, 
149  Mass.  432  (7  years);  Stone  v.  D.  D.,  E.  B.  &  B.  R.  Co.,  115  N.  Y. 
104  (over  7  years);  Cent.  R.  &  B.  Co.  v.  Rylee,  87  Ga.  491,  13  L,.  R. 
A.  634  (under  9  years) ;  Ihl  v.  F.  S.  St.  &  G.  St.  F.  R.  Co.,  47  N.  Y. 
317,  7  A.  R.  450,  453  (9  years,  6  months);  George  v.  L.  A'.  R.  Co.,  126 
Cal.  357,  46  L.  R.  A.  829  (9  years,  9  months);  Houston  &  T.  C.  R.  Co. 
v.  Simpson,  60  Tex.  103  (10  years);  Kan.  Cent.  R.  Co.  v.  Fitzsimmons, 
22  Kan.  686,  31  A.  R.  203  (12  years);  Kerr  v.  Forgue,  54  111.  482,  5  A. 
R.  146  (about  12) ;  Strawbridge  v.  Bradford,  128  Pa.  200  (13  years, 
4  months) ;  Cincinnati  St.  R.  Co.  v.  Wright,  54  Ohio  St.  181,  32  L.  R. 
A.  340  (about  14). 

It  has  been  held  that  there  is  a  disputable  presumption  of  incapacity, 
where  the  infant  is  between  7  and  14  years  of  age.  Pratt  C.  &  I.  Co. 
v.  Brawley,  83  Ala.  371,  3  A.  S.  R.  751. 

i»o  Benedict  v.  M.  &  St.  'L.  R.  Co.,  86  Minn.  224,  91  A.  S.  R.  345; 
Nagle  v.  A.  V.  R.  Co.,  88  Pa.  35,  32  A.  R.  413;  Kehler  v.  Schwenk,  144 
Pa.  348,  27  A.  S.  R.  633. 


§  33  CAPACITY  OF  INFANTS.  143 

§  33.    Contracts. 

An  infant  is  incapable  of  binding  himself  by  contract,  and 
contracts  made  by  him  before  he  attains  majority  may  ac- 
cordingly be  avoided  by  him  after  that  event.181  The  burden 
of  proving  infancy  as  a  defense  rests,  however,  on  the  defend- 
ant in  an  action  on  the  contract.192 

Generally  speaking,  the  executed  contracts  of  an  infant  are 
valid  until  disaffirmed,  while  his  executory  contracts  are  in- 
valid unless  he  ratifies  them  after  he  attains  his  majority.193 
In  an  action  on  an  infant's  executory  contract,  such,  for  in- 
stance, as  a  promissory  note,  the  burden  of  showing  ratifi- 
cation rests  accordingly  on  the  plaintiff.19* 

If  a  promise  to  pay  a  debt  contracted  in  infancy  is  condi- 
tional, the  burden  is  on  the  promisee,  in  an  action  by  him  on 
the  contract,  to  show  that  the  contingency  has  happened.195 

If  a  man  has  disposed  of  the  consideration  for  a  contract 
made  in  infancy,  he  may,  in  most  states,  avoid  the  contract 

i9i  Hammon,  Cont.  §§  154,  155.  . 

The  age  of  consent  to  the  marriage  contract  was  fixed  by  the  com- 
mon law  at  the  age  of  14  years  in  males  and  12  years  in  females. 
Under  those  ages,  it  was  conclusively  presumed  that  the  parties  were 
incapable  of  consenting  to  matrimony.  Accordingly,  when  either 
spouse  arrived  at  the  age  of  consent,  he  or  she  might  elect  to  avoid 
the  marriage  without  aid  of  court.  1  Bl.  Comm.  436;  Rex  v.  Gordon, 
Russ.  &  R.  48;  Com.  v.  Munson,  127  Mass.  459,  468;  Warwick  v. 
Cooper,  5  Sneed  (Tenn.)  658;  Pool  v.  Pratt,  1  D.  Chip.  (Vt.)  252 
(semble).  See  People  v.  Slack,  15  Mich.  193. 

i82Borthwick  v.  Carruthers,  1  Term  R.  648;  Foltz  v.  Wert,  103  Ind. 
404;  Starratt  v.  Mullen,  148  Mass.  570,  571  (semble);  Simmons  v. 
Simmons,  8  Mich.  318.  And  see  Com.  v.  Moore,  3  Pick.  (Mass.)  194; 
Jeffrie  v.  Robideaux,  3  Mo.  33;  Hanly  v.  Levin,  5  Ohio,  227. 

IBS  Hammon,  Cont.  §  171. 

i»*  Henderson  v.  Fox,  5  Ind.  489;  Tyler  v.  Gallop's  Estate,  68  Mich. 
185,  13  A.  8.  R.  336. 

i»5  Cole  v.  Saxby,  3  Esp.  159;  Proctor  v.  Sears,  4  Allen  (Mass.)  95; 
Minock  v.  Shortridge,  21  Mich.  304;  Everson  v.  Carpenter,  17  Wend. 
(N.  Y.)  4i9;  Chandler  v.  Glover's  Adm'r,  32  Pa.  509. 


144  LAW  OF   EVIDENCE.  g  3$ 

without  placing  the  other  party  in  statu  quo  ;196  but  the  burden 
of  showing  that  he  is  thus  unable  to  restore  the  consideration? 
rests  upon  him,  and  not  on  the  adult  party.197 

While  an  infant  is  not  generally  liable  on  his  contracts,, 
yet  he  must  pay  for  necessaries  furnished  him  on  credit.198 
An  article  furnished  to  an  infant  may  have  the  potential  at- " 
tributes  of  a  necessary,  and  yet  be  not  such,  because,  in  the 
particular  case,  the  infant  did  not  need  it.  To  render  an 
infant  liable  as  for  necessaries,  a  necessity  for  the  thing  fur- 
nished must  have  existed,  regard  being  had  to  the  infant's 
station  in  life  and  the  particular  circumstances  of  the  case; 
and  in  an  action  to  recover  the  price  of  articles  so  furnished, 
the  burden  of  showing  that  the  infant  needed  the  articles 
rests  on  the  plaintiff.199  If,  therefore,  an  infant  resides  at. 
home  with  his  parents,  the  presumption  is  that  he  is  properly 
maintained  by  them,  and  he  is  not  liable,  even  for  the  com- 
mon necessaries  of  life;200  and  the  same  is  true  with  reference 

i»6  Hammon,  Cont.  §  174. 

197  Dickerson  v.   Gordon,   52  Hun,   614,  5  N.  Y.  Supp.   310;    Lane  v. 
Dayton  C.  &  I.  Co.,  101  Tenn.  581.     However,  if  the  former  infant  is 
unable  to  restore  the  status  quo,  and  the  contract  was  fair  and  bene- 
ficial,  he   cannot,   as  a  rule,   recover  back   the  consideration   paid  by 
him;   but  to  preclude  nim  from  recovering  back  the  consideration  of 
a   contract  which  he   seeks  to  disaffirm,  the  other  party  must  show 
that  the  situation  above  defined  exists.     Johnson  v.  N.  W.  M.  L.  Ins. 
Co.,  56  Minn.  365,  45  A.  S.  R.  473. 

198  Hammon,  Cont.  §  158. 

io9Brooker  v.  Scott,  11  Mees.  &  W.  67,  68;  Nicholson  v.  Wilborn,  1£ 
Ga.  467;  Wood  v.  Losey,  50  Mich.  475;  Miller  v.  Smith,  26  Minn.  248, 
250,  37  A.  R.  407;  Wailing  v.  Toll,  9  Johns.  (N.  Y.)  141;  Johnson  v. 
Lines,  6  Watts  &  S.  (Pa.)  80,  40  A.  D.  542;  Rivers  v.  Gregg,  5  Rich. 
Eq.  (S.  C.)  274;  Thrall  v.  Wright,  38  Vt.  494. 

200  Bainbridge  v.  Pickering,  2  W.  Bl.  1325;  Angel  v.  McLellan,  16- 
Mass.  28,  31;  Decell  v.  Lewenthal,  57  Miss.  331,  34  A.  R.  449;  Perrin 
v.  Wilson,  10  Mo.  451;  Goodman  v.  Alexander,  165  N.  Y.  289,  292; 
Wailing  v.  Toll,  9  Johns.  (N.  Y.)  141;  Guthrie  v.  Murphy,  4  Watts 
(Pa.)  80,  28  A.  D.  681;  Jones  v.  Colvin,  1  McMul.  (S.  C.)  14;  Elrod: 


§  34  CONTINUITY.  145 

to  an  infant  who  has  a  guardian.201  But  this  presumption 
is  rebuttable,  and  the  mere  fact  that  an  infant  has  a  father 
or  a  guardian  does  not  save  him  from  liability  for  things 
which  he  actually  needed  when  they  were  furnished,  if  it  be 
shown  that  the  father  or  guardian  had  failed  in  his  duty 
to  maintain  the  infant.202  Again,  if  an  infant  has  an  income 
sufficient  to  enable  him  to  pay  cash  for  supplies,  the  pre- 
sumption is  that  his  wants  have  been  fully  supplied  from  that 
source,  and  one  who  furnishes  him  articles  on  credit  has  the 
burden  of  showing  the  contrary.208 

D.    CONTINUITY. 

§  34.    General  rules. 

Considered  with  reference  to  their  duration,  facts  and  states 
of  fact  are  either  ephemeral,  intermittent,  or  continuing.  If 
a  fact  or  a  state  of  facts,  continuing  in  its  nature,  is  shown  to 
have  once  existed,  the  presumption  is  that  it  still  continues 
to  exist  in  the  same  way,  and  the  burden  of  adducing  evidence 
to  the  contrary  is  cast  upon  the  adverse  party.  Stated  in  this 
abstract  form,  the  presumption  is  one  of  law;  that  is,  an  as- 
sumption of  fact,  sanctioned  by  fixed  rule  of  law,  and  in  no 

v.  Myers,  2  Head  (Tenn.)  33;  Nichol  v.  Steger,  6  Lea  (Term.)  393. 
This  is  true,  even  though  the  father  is  in  poor  circumstances.  Hoyt 
v.  Casey,  114  Mass.  397,  19  A.  R.  371. 

201  Nicholson   v.   Spencer,   11   Ga.    607;    McKanna   v.    Merry,   61    111. 
177;   Davis  v.  Caldwell,  12  Gush.   (Mass.)    512,  513;   Kline  v.  L'Amou- 
reux,  2  Paige  (N.  Y.)-  419,  22  A.  D.  652;   Goodman  v.  Alexander,  165 
N.  Y.  289,  292;   Freeman  v.  Bridger,  49  N.  C.    (4  Jones)    1,  67  A.  D. 
258;   Guthrie  v.  Murphy,  4  Watts   (Pa.)    80,  28  A.  D.  681;   Kraker  v. 
Byrum,  13  Rich.  Law   (S.  C.)    163;    Elrod  v.  Myers,  2  Head    (Tenn.) 
33;  Nichol  v.  Steger,  6  Lea  (Tenn.)  393. 

202  Trainer  v.   Trumbull,   141   Mass.   527;    Parsons  v.   Keys,  "43   Tex. 
557.     See  Brayshaw  v.  Eaton,  7  Scott,  183. 

2*3  Nicholson  v.  Wilborn,  13  Ga.  467;  Rivers  v.  Gregg,  5  Rich.  Eq. 
(S.  C.)  274.  See  Burghart  v.  Hall,  4  Mees.  &  W.  727;  Barnes  v. 
Toye,  13  Q.  B.  Div.  410,  412. 

Hammon,  Ev. — 10. 


146  LAW  OF   EVIDENCE.  §  34 

wise  dependent  upon  a  process  of  reasoning  for  its  existence 
and  effect.  In  other  words,  evidence  that  a  state  of  facts  per- 
manent in  its  nature  once  existed  becomes  legally  equivalent 
to  direct  evidence  of  its  present  existence.20*  As  applied  to 
many  cases,  however,  the  presumption  is  regarded  as  one 
of  fact;  that  is,  an  inference  which  the  jury  may  draw  or 
refuse  to  draw,  as  may  seem  reasonable  to  them.205  In  any 
event,  the  presumption  is  rebuttable,  and,  when  evidence  tend- 
ing to  overcome  it  is  adduced,  the  question  of  the  present 
existence  of  the  fact  in  dispute  becomes  one  for  the  jury 
upon  all  the  evidence.206 

To  give  rise  to  the  inference  or  presumption  of  continuity, 
the  state  of  facts  shown  to  have  once  existed  must  be  perma- 
nent or  continuing  in  its  nature.  If  it  is  a  state  of  facts  that 
in  the  nature  of  things  could  not  long  exist,  or  that  could 
exist  only  intermittently,  the  presumption  or  inference  does 
not  arise.207 

204  Anderson  v.  Morice,  L.  R.  10  C.  P.  58,  68;   Charles  Green's  Son 
v.  Salas,  31  Fed.  106;  Metzger  v.  Schultz,  16  Ind.  App.  454,  59  A.  S.  R. 
323;  Adams  v.  Slate,  87  Ind.  573;  McMahon  v.  Harrison,  6  N.  Y.  443; 
Love  v.  Edmonston,  27  N.  C.   (5  Ired.)  354;  Toledo  v.  Sheill,  53  Ohio 
St.  447,  30  L.  R.  A.  598.    And  see  Poe  v.  Dorrah,  20  Ala.  288,  56  A.  D. 
196;  Garner  v.  Green,  8  Ala.  96;  Brown  v.  Burnham,  28  Me.  38. 

An  offer,  once  made,  is  presumed  to  remain  open  for  a  reasonable 
time  to  enable  the  offeree  to  accept  it.  Hammon,  Cont.  §  66. 

If  goods  are  delivered  to  an  initial  carrier  in  good  condition,  the 
presumption  is  that  they  remain  so,  and  the  burden  is  accordingly 
on  the  last  connecting  carrier  to  show  that  the  goods  were  not  in 
that  condition  when  they  came  into  his  hands.  See  §  68  (d),  infra. 

Presumption  that  foreign  law,  once  ascertained,  remains  the  same, 
see  §  105 (b),  infra. 

205  pickup  v.  Thames  &  M.  M.  Ins.  Co.,  3  Q.  B.  Div.  594,  Thayer,  Cas. 
Ev.  lOfr,  109;   Donahue  v.  Coleman,  49  Conn.  464. 

206  Chillingworth  v.   Eastern  Tinware  Co.,  66  Conn.   306;    Dugas  v. 
Estiletts,  5  'La.  Ann.  559. 

207  Scott  v.  Wood,  81  Cal.  398;   Donahue  v.  Coleman,  49  Conn.  464; 
Goodsell  v.  Taylor,  41  Minn.  207,  16  A.  S.  R.  700. 

If  insanity  appears  to  be  a  temporary  disease,  the  burden  of  show- 


§  35  CONTINUITY.  147 

The  presumption  of  continuity  may  have  a  retrospective 
operation;  that  is  to  say,  an  inference  of  the  prior  existence 
of  a  state  of  facts  may  in  some  cases  be  drawn  from  its  present 
existence.208  Thus,  if  a  vessel  becomes  leaky  or  otherwise 
disabled  without  adequate  cause,  shortly  after  sailing,  the 
natural  inference  is  that  she  was  unseaworthy  when  she 
sailed.209  To  justify  a  retrospective  presumption,  however,  the 
fact  in  question  must,  by  the  weight  of  authority,  be  of  such 
a  nature  that  its  present  existence  cannot  be  accounted  for 
except  by  assuming  its  existence  at  some  time  in  the  past, 
which  is,  as  a  rule,  a  time  not  far  remote.210 

§  35.    Illustrations. 

Ownership  shown  to  have  existed  at  a  time  in  the  past  is 
presumed  to  continue  until  alienation  is  shown;211  and  pos- 
ing its  continuance  rests  on  the  party  asserting  it.  See  §  88,  infra. 
As  to  possession,  see  note  212,  infra.  As  to  war,  see  note  231,  infra. 

208  Ames  v.  Dorroh,  76  Miss.  187,  71  A.  S.  R.  522. 

In  an  action  for  injuries  caused  by  a  defective  sidewalk,  it  is  com- 
petent to  show  the  condition  of  the  walk  shortly  after  the  accident, 
there  being  no  evidence  of  an  intermediate  change.  Berrenberg  v. 
Boston,  137  Mass.  231,  50  A.  R.  296;  Hall  v.  Austin,  73  Minn.  134. 

Retrospective  operation  of  presumption  of  continuance  of  insanity, 
see  §  88,  note  771,  infra. 

209  Watson  v.  Clark,  1  Dow,  336;    Pickup  v.  Thames-  &  M.  M.   Ins. 
Co.,  3  Q.  B.  Div.  594,  Thayer,  Gas.  Ev.  106;  Anderson  v.  Morice,  L.  R. 
10  C.  P.  58,  68;  Cort  v.  Del.  Ins.  Co.,  2  Wash.  C.  C.  375,  Fed.  Cas.  No. 
3,257;  Talcot  v.  Commercial  Ins.  Co.,  2  Johns.  (N.  Y.)  124,  3  A.  D.  406; 
Myers  v.  Girard  Ins.  Co.,  26  Pa.  192;   Cameron  v.  Rich,  4  Strob.  Law 
(S.  C.)   168,  53  A.  D.  670. 

zioMurdock  v.  State,  68  Ala.  567;  Windhaus  v.  Bootz,  92  Cal.  617; 
Erskine  v.  Davis,  25  111.  251;  Dugas  v.  Estiletts,  5  La.  Ann.  559;  Tay- 
lor v.  Creswell,  45  Md.  422;  Hingham  v.  South  Scituate,  7  Gray  (Mass.) 
229,  232;  Dixon  v.  Dixon,  24  N.  J.  Eq.  133;  Jarvis  v.  Vanderford,  116 
N.  C.  147;  Martyn  v.  Curtis,  67  Vt.  263,  265;  Body  v.  Jewsen,  33  Wis. 
402. 

2«Kidder  v.  Stevens,  60  Cal.  414;  Chillingworth  v.  Eastern  Tinware 
Co.,  66  Conn.  306;  Brown  v.  Castellaw,  33  Fla.  204;  Abbott  v.  Union 


148  LAW  OB    EVIDENCE.  g  35 

session,  shown  once  to  have  existed,  is  subject  to  the  like 

presumption,  in  the  absence  of  evidence  to  the   contrary.212 

Indebtedness,  if  shown  to  have  existed  at  a  given  time  in 

the  past,  is  presumed  to  continue  for  a  reasonable  time;213 

Mut.  L.  Ins.  Co.,  127  Ind.  70,  75;  Sullivan  v.  Goldman,  19  La.  Ann.  12; 
Magee  v.  Scott,  9  Gush.  (Mass.)  148,  55  A.  D.  49;  Ormsby  v.  Barr, 
22  Mich.  80;  Lind  v.  Lind,  53  Minn.  48;  Rhone  v.  Gale,  12  Minn.  54; 
Hanson  v.  Chiatovich,  13  Nev.  395;  Table  Mountain  G.  &  S.  Min.  Co. 
v.  W.  D.  S.  Min.  Co.,  4  Nev.  218,  97  A.  D.  526;  Scammon  v.  Scammon, 
28  N.  H.  419;  Jackson  v.  Potter,  4  Wend.  (N.  Y.)  672;  Boozer  v. 
Teague,  27  S.  C.  348;  Teetshorn  v.  Hull,  30  Wis.  162;  Harriman  v. 
Queen  Ins.  Co.,  49  Wis.  71.  And  see  Milburn  v.  Phillips,  136  Ind.  680. 

The  presumption  is  not  rebutted  by  evidence  that  the  original  owner 
allowed  another  to  take  possession.  Magee  v.  Scott,  9  Gush.  (Mass.) 
148,  55  A.  D.  49. 

The  presumption  applies  to  ownership  of  shares  of  stock  in  a  cor- 
poration. Montgomery  &  W.  Plank-Road  Co.  v.  Webb,  27  Ala.  618. 

212  Lazarus  v.  Phelps,  156  U.  S.  202,  205;    Hollingsworth  v.  Walker, 
98  Ala.  543;   Clements  v.  Hays,  76  Ala.  280;   Robson  v.  Rawlings,  79 
Ga.  354;    McMullen  v.  Winfield  B.  &  L.  Ass'n,  64  Kan.  298,  91  A.  S. 
R.  236;   Sullivan  v.  Goldman,  19  La.  Ann.  12;   Currier  v.  Gale,  9  Allen 
(Mass.)    522;   Brown  v.  King,  5  Mete.   (Mass.)    173;  Rogers  v.  Benton, 
39  Minn.  39,  12  A.  S.  R.  613;  Wilkins  v.  Earle,  44  N.  Y.  172,  4  A.  R. 
655,  664.     And  see  Eaton  v.  Woydt,  26  Wis.  383. 

If  the  character  of  possession  is  shown  to  have  been  adverse  at  a 
particular  time  in  the  past,  it  is  presumed  to  retain  that  character. 
Barrett  v.  Stradl,  73  Wis.  385,  9  A.  S.  R.  795.  If,  on  the  other  hand, 
possession  is  shown  to  have  once  existed  in  subordination  to  another's 
title,  it  is  presumed  to  retain  that  character.  Hill  v.  Goolsby,  41  Ga. 
289,  291;  Leport  v.  Todd,  32  N.  J.  Law,  124;  Hood  v.  Hood,  2  Grant 
Gas.  (Pa.)  229. 

This  presumption  will  not  be  indulged  as  to  personal  property,  where 
fifteen  years  have  elapsed  since  possession  was  held.  Allen  v.  Brown, 
83  Ga.  161.  Nor  will  the  fact  that  a  paper  was  seen  in  testator's 
possession  eight  months  before  his  death  give  rise  to  a  presumption 
that  it  was  found  there  at  or  after  his  death.  Adams  v.  Clark,  53  N. 
C.  (8  Jones)  56. 

It  seems  that  this  presumption  should  not  operate  retrospectively  for 
several  years.  Martyn  v.  Curtis,  67  Vt.  263,  265. 

213  Jackson  v.  Irvin,  2  Camp.  48,  50;  O'Neil  v.  N.  Y.  &  S.  P.  Min.  Co., 
3  Nev.  141,  147. 


§  35  CONTINUITY.  149 

and  the  like  is  true  of  a  condition  of  solvency  or  insolvency, 
which  also  is  presumed  to  continue  for  a  reasonable  length  of 
time,  in  the  absence  of  evidence  to  the  contrary.214 

The  presumption  of  continuance  applies  also  to  liens215  and 
to  judgments.216  If,  therefore,  one  of  these  is  shown  to  have 
existed  at  a  given  time  in  the  past,  the  presumption  is,  in  the 
absence  of  evidence  to  the  contrary,  that  it  continues  to  exist. 

A  particular  relation  which  is  shown  to  have  existed  be- 
tween certain  persons  at  a  specified  time  in  the  past  is  presumed 
to  continue  until  evidence  is  given  to  the  contrary.217  This 

The  presumption  applies,  although  the  debt  had  not  matured  at 
the  time  it  is  directly  proved  to  have  been  in  existence.  Farr  v.  Payne, 
40  Vt.  615. 

A  presumption  of  payment  may  arise  from  long  lapse  of  time,  how- 
ever, in  which  case  the  presumption  of  continuity  vanishes.  See  §  75, 
infra. 

A  note  once  proved  to  exist  is  presumed  to  exist  still,  in  the  ab- 
sence of  further  evidence.  Bell  v.  Young,  1  Grant  Gas.  (Pa.)  175. 

21*  Donahue  v.  Coleman,  49  Conn.  464;  Wallace  v.  Hull,  28  Ga.  68; 
Adams  v.  Slate,  87  Ind.  573;  Towns  v.  Smith,  115  Ind.  480,  483;  Mul- 
len v.  Pryor,  12  Mo.  307;  Walrod  v.  Ball,  9  Barb.  (N.  Y.)  271;  Body 
v.  Jewsen,  33  Wis.  402. 

The  presumption  may  have  a  retrospective  operation.  Ames  v.  Dor- 
roh,  76  Miss.  187,  71  A.  S.  R.  522.  But  it  will  not  be  allowed  to 
operate  back  five  years.  -Windhaus  v.  Bootz,  92  Cal.  617. 

215  See  Crampton  v.  Prince,  83  Ala.  246,  3  A.  S.  R.  718;  Hays  v. 
Horine,  12  Iowa,  61,  79  A.  D.  518;  Kirkwood  v.  Hoxie,  95  Mich.  62, 
35  A.  S.  R.  549;  Childs  v.  Merrill,  63  Vt.  463,  14  L.  R.  A.  264.  It  has 
been  held,  however,  that,  where  an  attachment  of  the  debt  in  suit 
is  relied  on  as  a  defense,  the  burden  of  showing  that  the  attachment 
is  still  in  force  is  on  the  defendant.  Bacon  v.  Smith,  2  La.  Ann.  441, 
46  A.  D.  549. 

2i«  Murphy  v.  Orr,  32  111.  489. 

Continuance  of  jurisdiction  which  has  once  attached  Is  presumed  in 
favor  of  the  subsequent  judgment.  Lockhart  v.  Locke,  42  Ark.  17. 

217  Eames  v.  Eames,  41  N.  H.  177;  Love  v.  Edmonston,  27  N.  C. 
(5  Ired.)  354;  Schmit  v.  Day,  27  Or.  110. 

Relation  between  possessor  of  property  and  titular  owner,  see  note 
212,  supra. 


150  LAW  OF   EVIDENCE.  §  35 

rule  is  instanced  by  various  commercial  relations,  such  as 
agency,218  partnership,219  and  the  corporate  relation.220  The 
rule  is  instanced  also  in  social  relations.  Thus,  if  adulterous 
intercourse  is  shown  to  have  once  existed  between  certain  per- 
sons, it  is  presumed  to  continue  so  long  as  opportunity  per- 
mits it.221  And  if  a  person  is  shown  to  have  been  unmarried 
at  a  particular  time,  it  has  been  held  that  he  is  presumed  to 
remain  so,  in  the  absence  of  other  evidence  on  the  subject.222 
So,  if  marriage  of  certain  persons  at  a  time  in  the  past  is 
proved,  the  continuance  of  that  relation  is  ordinarily  presumed 
until  death  or  divorce  is  shown.223  If,  however,  it  appears  that 

aisMcKenzie  v.  Stevens,  19  Ala.  691;  Hensel  v.  Maas,  94  Mich.  563; 
McCullough  v.  Phoenix  Ins.  Co.,  113  Mo.  606;  Hall  v.  Union  Cent.  L. 
Ins.  Co.,  23  Wash.  610,  51  L.  R.  A.  288. 

219  Garner  v.  Green,  8  Ala.  96,  98   (semble) ;   Cooper  v.  Dedrick,  22 
Barb.   (N.  Y.)   516. 

220  People  v.  Manhattan  Co.,  9  Wend.   (N.  Y.)   351. 

22iCarotti  v.  State,  42  Miss.  334;  Smith  v.  Smith,  4  Paige  (N.  Y.) 
432,  27  A.  D.  75,  78. 

This  presumption  will  not  ordinarily  be  given  a  retrospective  opera- 
tion. Dixon  v.  Dixon,  24  N.  J.  Eq.  133. 

Unlawful  intercourse  being  established,  no  legal  presumption  of 
reformation  can  arise  from  the  fact  of  nonintercourse  for  several 
months,  there  being  no  opportunity  for  it.  People  v.  Squires,  49  Mich. 
487. 

222  Contra,  Bennett  v.  State,  103  Ga.  66,  68  A.  S.  R.  77. 

Thus,  if  a  person  who  has  been  absent  and  unheard  of  for  seven 
years  was  single  when  last  heard  of,  the  presumption  is  that  he  re- 
mained so  until  the  time  of  his  death,  which  is  presumed  from  the 
lapse  of  time.  Rowe  v.  Hasland,  1  W.  Bl.  404;  Doe  d.  Banning  v. 
Griffin,  15  East,  293;  Loring  v.  Steineman,  1  Mete.  (Mass.)  204,  211. 
And  see  Shown  v.  McMackin,  9  Lea  (Tenn.)  601,  42  A.  R.  680.  Contra, 
Still  v.  Hutto,  48  S.  C.  415. 

A  person  claiming  under  a  deed  made  by  the  titular  owner  alone 
does  not  have  the  burden  of  showing  that  the  grantor  was  single,  or, 
if  married,  that  the  land  was  not  his  homestead,  so  as  to  account  for 
the  absence  of  a  wife's  signature.  Nicodemus  v.  Young,  90  Iowa,  423. 

223  people  v.  Stokes,  71  Cal.  263;   Wallace  v.  Pereles,  109  Wis.  316, 
83  A.  S.  R.  898.    Contra,  Page  v.  Findley,  5  Tex.  391. 


§  35  CONTINUITY.  151 

one  of  the  spouses  has  remarried,  this  fact,  in  connection  with 
other  circumstances,  dispels  the  presumption  of  the  contin- 
uance of  the  first  marriage,  and  it  may  be  presumed  in  favor 
of  the  second  marriage,  when  its  validity  is  questioned,  that 
the  former  spouse  is  either  dead224  or  divorced.225  A  divorce 
is  not  always  thus  presumed  in  favor  of  a  second  marriage, 
however.  Each  case  rests  on  its  own  peculiar  facts  and  cir- 
cumstances, and  such  inferences  as  may  fairly  be  drawn  from 
them.226  In  other  words,  the  presumption  of  divorce  is  a 
presumption  of  fact,  so-called,  and  not  a  presumption  of  law. 

The  presumption  of  coverture  does  not  operate  retrospectively.  Mur- 
dock  v.  State,  68  Ala.  567;  Erskine  v.  Davis,  25  111.  251. 

224  section  62(c),  infra. 

226  Hunter  v.  Hunter,  111  Cal.  261,  52  A.  S.  R.  180;  Pittinger  v. 
PIttinger,  28  Colo.  308,  89  A.  S.  R.  193;  Erwin  v.  English,  61  Conn. 
502;  Schmisseur  v.  Beatrie,  147  111.  210;  Coal  Run  Coal  Co.  v.  Jones, 
127  111.  379;  Boulden  v.  Mclntire,  119  Ind.  574,  12  A.  S.  R.  453;  Wen- 
ning  v.  Teeple,  144  Ind.  189;  Leach  v.  Hall,  95  Iowa,  611;  Parsons 
v.  Grand  Lodge,  A.  O.  U.  W.,  108  Iowa,  6;  Blanchard  v.  Lambert,  43 
Iowa,  228,  22  A.  R.  245;  Tuttle  v.  Raish,  116  Iowa,  331;  Harrison  v. 
Lincoln,  48  Me.  205;  Kelly  v.  Drew,  12  Allen  (Mass.)  107,  90  A.  D. 
138;  Ala.  &  V.  R.  Co.  v.  Beardsley,  79  Miss.  417,  89  A.  S.  R.  660;  Klein 
v.  Laudman,  29  Mo.  259;  Hadley  v.  Rash,  21  Mont.  170,  69  A.  S.  R. 
649;  Carroll  v.  Carroll,  20  Tex.  731;  Nixon  v.  Wichita  L.  &  C.  Co., 
84  Tex.  408;  Goldwater  v.  Burnside,  22  Wash.  215.  Contra,  Wilson  v. 
Allen,  108  Ga.  275;  McDeed  v.  McDeed,  67  111.  545;  Com.  v.  Boyer,  7 
Allen  (Mass.)  306;  Smith  v.  Smith,  5  Ohio  St.  32. 

Legislative  ratification  of  decree  of  divorce  may  be  presumed  from 
great  lapse  of  time,  in  connection  with  fact  of  remarriage  of  one  of 
the  parties.  Wilson  v.  Holt,  83  Ala.  528,  3  A.  S.  R.  768.  See,  how- 
ever, McCarty  v.  McCarty,  2  Strob.  Law  (S.  C.)  6,  47  A.  D.  585. 

This  presumption  of  divorce  is  of  course  rebuttable.  Schmisseur 
v.  Beatrie,  147  111.  210;  Cole  v.  Cole,  153  111.  585;  Harrison  v.  Lincoln, 
48  Me.  205. 

226  Goodwin  v.  Goodwin,  113  Iowa,  319;  Barnes  v.  Barnes,  90  Iowa, 
282;  Williams  v.  Williams,  63  Wis.  58,  53  A.  R.  253. 

To  give  rise  to  the  presumption  of  divorce,  there  must  be  something 
based  on  the  conduct  of  both  parties  to  the  first  marriage  inconsistent 
wife  its  continuance.  Ellis  r.  Ellis,  58  Iowa,  7ZO;  Gilman  v.  Sheets, 
78  Iowa,  499  And  the  presumption  does  not  arise  where  the  former 


152  LAW  OF   EVIDENCE.  §  35 

Character  and  state  of  mind  of  a  particular  person,  as  shown 
once  to  have  existed,  are  presumed  to  continue.227 

Domicile,  residence,  or  settlement  in.  a  particular  place, 
shown  once  to  have  existed,  is  presumed  to  continue;228  and 
the  same  is  true  of  alienage.229 

Incumbency  of  office  at  a  given  time  in  the  past  being  shown, 
the  presumption  is  that  it  continues  during  the  term  of  office 
prescribed  by  law.230 

spouses  separated  only  three  years  previously,  and  the  records  of  the 
only  courts  in  which  a  divorce  might  lawfully  have  been  obtained  are 
accessible.  Cartwright  v.  McGown,  121  111.  388,  2  A.  S.  R.  105. 

227  state  v.  Johnson,  23  N.  C.  (1  Ired.)  354,  35  A.  D.  742. 
Presumption  of  continuance  of  insanity,  see  section  88,  infra. 
Mendacity,  shown  once  to  have  existed,  is  presumed  to  continue. 

Scammon  v.  Scammon,  28  N.  H.  419,  434  (semble) ;  Sleeper  v.  Van 
Middlesworth,  4  Denio  (N.  Y.)  431;  Lum  v.  State,  11  Tex.  App.  483. 

This  presumption  has  been  held  not  to  arise  after  a  lapse  of  three 
years.  Wood  v.  Matthews,  73  Mo.  477. 

Knowledge  of  the  details  of  a  private  business  transaction  will  not 
be  presumed  to  continue  for  nine  years  in  the  party's  mind,  so  as 
to  charge  him  with  fraud.  Goodwin  v.  Dean,  50  Conn.  517. 

228  Rex  v.  Tanner,  1  Esp.  304,  306;  Mitchell  v.  U.  S.,  21  Wall.  (U.  S.) 
350,  353;  Daniels  v.  Hamilton,  52  Ala.  105;  Prather  v.  Palmer,  4  Ark. 
456;  Botna  Valley  State  Bank  v.  Silver  City  Bank,  87  Iowa,  479;  Green- 

r  field  v.  Camden,  74  Me.  56;  Bowdoinham  v.  Phippsburg,  63  Me.  497; 
Chicopee  v.  Whately,  6  Allen  (Mass.)  508;  Nixon  v.  Palmer,  10  Barb. 
(N.  Y.)  175;  Price  v.  Price,  156  Pa.  617;  Rixford  v.  Miller,  49  Vt.  319. 
See,  however,  Ripley  r.  Hebron,  60  Me.  379. 

Nonresidence,  once  shown,  is  presumed  to  continue.  State  Bank  v. 
Seawell,  18  Ala.  616;  Kaufman  v.  Caughman,  49  S.  C.  159,  61  A.  S. 
R.  808. 

The  presumption  of  residence  will  not  be  given  a  retrospective  op- 
eration of  forty-seven  years.  Hingham  v.  South  Scituate,  7  Gray 
(Mass.)  229,  232. 

229  Charles  Green'*  Son  v.  Salas,  31  Fed.  106. 

230  Rex  v.  Budd,  5  Esp.  230,   Kaufman  v.  Stone,  25  Ark.  336,  345; 
Kinyon  v.  Duchene,  21  Micb.  4*8,  501.     See  Urmston  v.  State,  73  Ind. 
175. 

This  presumption  will  not  Derate  retrospectively  for  several  years. 
Tarvis  v.  Vand»rfortl,  116  N.  C.  147. 


§  36  CONVERSION.  153 

If  a  condition  of  war  or  of  peace  is  shown  to  have  existed 
at  a  given  time  in  the  past,  the  presumption  is  that  it  con- 
tinues, in  the  absence  of  evidence  to  the  contrary.231 

The  presumption  of  continuance  applies  also  to  treaties 
shown  to  have  been  once  in  force,232  and  also  to  customs  and 
usages.233 

Seaworthiness,  shown  once  to  have  existed,  is  presumed  to 
continue.234 

E.    CONVERSION. 

§  36.  If  a  person  in  possession  of  personal  property  refuses 
to  deliver  it  to  the  rightful  owner  upon  the  latter 's  de- 
mand, evidence  of  the  demand  and  refusal  is  equivalent  in 
law,  in  an  action  of  trover,  to  evidence  that  the  possessor  has 
converted  the  goods,  and  the  burden  is  therefore  upon  him 
to  justify  his  refusal.  In  other  words,  evidence  of  a  demand 
and  refusal  raises  a  presumption  of  conversion.236  Originally, 
this  presumption  was  doubtless  no  more  than  an  inference, — 
a  so-called  presumption  of  fact,  which  gained  its  present  form 
of  legal  presumption  in  the  mode  of  development  already 
sketched  in  an  earlier  part  of  the  chapter.23* 

The  presumption  of  conversion  is  not  conclusive.  Demand 
and  refusal  are  not  in  themselves  a  conversion,  and  the  pre- 

«i  Covert  v.  Gray,  34  How.  Pr.  (N.  Y.)  450,  455;  People  v.  McLeod, 
1  Hill  (N.  Y.)  377,  25  Wend.  483,  37  A.  D.  328.  There  is  no  presump- 
tion that  an  existing  war  will  continue  in  the  future,  however.  Covert 
v.  Gray,  supra. 

zsz  people  v.  McLeod,  1  Hill  (N.  Y.)  377,  25  Wend.  483,  37  A.  D.  328. 

233  Scales  v.  Key,  11  Adol.  &  E.  819. 

234  Martin  v.  Fishing  Ins.  Co.,  20  Pick.  (Mass.)  389,  32  A.  D.  220. 
Presumption  of  previous  unseaworthiness,  see  §  34,  supra. 

235  Thompson  v.  Rose,  16  Conn.  71,  41  A.  D.  121;    Moody  v.  Whit- 
ney, 38  Me.  174,  61  A.  D.  239;   Magee  v.  Scott,  9  Cush.    (Mass.)    148, 
55  A.  D.  49;   Bradley  v.  Spofford,  23  N.  H.  444,  55  A.  D.  205;   Lock- 
wood  v.  Bull,  1  Cow.  (N.  Y.)  322,  13  A.  D.  539. 

236  Section  16 (a),  supra. 


154  LAW   OF   EVIDENCE.  §  37 

sumption  may  therefore  be  rebutted  by  evidence  justifying 
the  refusal.237 

To  raise  the  presumption,  the  property  must  have  been  in 
the  possession  of  the  person  refusing,238  the  refusal  must  have 
been  absolute  and  unconditional,239  and  it  must  have  been 
made  to  the  owner  or  his  agent.240 

P.     FABRICATION,     SPOLIATION,     SUPPRESSION,     AND     NONPRODUC- 
TION   OF  EVIDENCE. 

§  37.    General  considerations. 

If  a  party  fabricates,  spoliates,  suppresses,  or  withholds 
evidence  concerning  a  fact  in  dispute,  it  naturally  gives  rise 
to  an  inference  that  a  disclosure  of  the  truth  of  the  matter 
in  question  would  prejudice  his  case;  otherwise  there  would 
be  no  motive  for  his  act.  Evidence  is  therefore  admissible 
to  show  what  he  has  done  in  that  regard,  if  it  does  not  inci- 
dentally appear;  and  counsel  may  comment  on  it  in  the  argu- 
ment to  the  jury,  and  the  court  may  instruct  the  jury  as  to 
their  right  or  duty  to  draw  the  inference. 

237  Webber  v.  Davis,  44  Me.  147,  69  A.  D.  87;  Packard  v.  Getman,  6 
Cow.  (N.  Y.)  757,  16  A.  D.  475;  Hill  v.  Covell,  1  N.  Y.  522;  Cobb  v. 
Wallace,  5  Cold.  (Term.)  539,  98  A.  D.  435;  Irish  v.  Cloyes,  8  Vt.  30, 
30  A.  D.  446. 

238Qarr  v.  Clough,  26  N.  H.  280,  59  A.  D.  345;  Hallenbake  v.  Fish, 
8  Wend.  (N.  Y.)  547,  24  A.  D.  88;  Hawkins  v.  Hoffman,  6  Hill  (N.  Y.) 
586,  41  A.  D.  767;  Wamsley  v.  Atlas  S.  S.  Co.,  168  N.  Y.  533,  85  A.  S. 
R.  699;  Canning  v.  Owen,  22  R.  I.  624,  84  A.  S.  R.  858;  Irish  v.  Cloyes, 
8  Vt.  30,  30  A.  D.  446. 

239  Boiling  v.  Kirby,  90  Ala.  215,   24  A.   S.  R.  789;    Dent  v.  Chiles, 
5  Stew.  &  P.    (Ala.)    383,  26  A.  D.  350;    Taylor  v.  Spears,  6  Ark.  381, 
44  A.  D.  519.     Thus,  if  the  possessor  entertains  a  well-grounded  doubt 
as  to  the  demandant's  title,  and  refuses  to  deliver  the  property  to  him 
until   that   doubt   is    removed,   no   presumption   of   conversion    arises. 
Zachary  v.  Pace,  9  Ark.  212,  47  A.  D.  744;  Fletcher  v.  Fletcher,  7  N. 
H.  452,  28  A.  D.  359;   Dowd  v.  Wadsworth,  13  N.  C.    (2  Dev.)   130,  18 
A.  D.  567. 

240  Irish  v.  Cloyes,  8  Vt.  30,  30  A.   D.  446. 


§  37  FABRICATION   OF   EVIDENCE.  155 

Fabrication  of  evidence  consists  in  the  manufacture  of  some 
instrument  of  real  or  documentary  evidence,  or  in  perjury 
or  subornation  of  perjury.  Spoliation  of  evidence  consists  in 
the  destruction  or  mutilation  of  some  instrument  of  real  or 
documentary  evidence.  Suppression  of  evidence  consists  in 
active  means  taken  to  prevent  the  adduction  of  evidence  by 
way  of  removal  or  concealment  of  the  instrument  of  evi- 
dence; as  where  some  article  or  document  is  removed  or  con- 
cealed, or  a  prospective  witness  is  induced  to  conceal  himself 
or  to  leave  the  jurisdiction.  Nonproduction  of  evidence  con- 
sists in  the  mere  failure  to  adduce  evidence  which  it  is  in  the 
power  of  the  party  to  adduce.  It  is  a  negative  term,  and  is  so 
distinguishable  from  suppression  of  evidence,  which  involves 
the  use  of  active  means  to  prevent  a  disclosure  of  the  matter 
in  dispute. 

The  inference  may  be  drawn  from  the  fabrication,  spolia- 
tion, suppression,  or  nonproduction  of  evidence,  whether  the 
party  does  the  act  personally  or  by  agent;241  and  it  may  be 
drawn,  even  though  the  act  was  done  in  a  former  trial,242  or 
in  connection  with  another  case.243  If,  however,  several  facts 
are  in  issue,  and  the  party  fabricates,  spoliates,  suppresses,  or 

241  Chicago  C.  R.  Co.  v.  McMahon,  103  IH.  485,  42  A.  R.  29;  Com. 
v.  Locke,  145  Mass.  401. 

If  the  act  is  not  done  by  the  party  himself,  then  of  course  he  must 
be  connected  with  it  by  evidence  of  agency,  else  no  inference  may  be 
drawn  against  him.  The  Queen's  Case,  2  Brod.  &  B.  302;  Martin  v. 
State,  28  Ala.  71;  Fox  v.  Hale  &  N.  S.  Min.  Co.,  108  Cal.  369,  419; 
Matthews  v.  Hershey  Lumber  Co.,  65  Minn.  372;  Green  v.  Woodbury, 
48  Vt.  5.  Thus,  the  fact  that  a  witness  for  one  accused  of  crime 
testifies  falsely  is  not  evidence  of  the  accused's  guilt,  in  the  absence 
of  evidence  that  he  was  privy  to  the  falsification.  State  v.  Brown, 
76  N.  C.  222.  See,  generally,  as  to  effect  of  spoliation,  7  Currrent  Law, 
1517. 

2*2  Cole  v.  L.  S.  &  M.  S.  R.  Co.,  95  Mich.  77;  McHugh  v.  McHugh,. 
186  Pa.  197,  65  A.  S.  R.  849.  See,  however,  Enos  v.  St.  Paul  F.  &  M. 
Ins.  Co.,  4  S.  D.  639,  46  A.  S.  R.  796. 

2«  Qa.  R.  &  B.  Co.  v.  Lybrend,  99  Ga.  421. 


156  LAW   OF   EVIDENCE.  §  38 

withholds  evidence  as  to  only  one  of  those  facts,  or  as  to  sev- 
eral facts  less  than  all,  then  the  unfavorable  inference  created 
by  his  act  is  not  general,  but  limited  to  the  fact  or  facts  as  to 
which  his  act  relates.  If,  for  example,  in  an  action  of  trespass 
for  wrongfully  taking  silk  and  other  articles  belonging  to  the 
plaintiff,  it  appears  that  the  defendant  took  the  silk,  the  fact 
that  he  refuses  to  produce  it  or  allow  it  to  be  examined  and 
measured  would  justify  an  inference  unfavorable  to  his  conten- 
tion as  to  its  quantity  and  value,  but  would  not  justify  an  in- 
ference that  he  had  taken  the  other  articles  also.244 

To  justify  the  inference,  the  fact  of  fabrication,  spoliation, 
suppression,  or  nonproduction  must  be  clearly  established.248 
For  instance,  in  the  absence  of  evidence  of  fabrication,246  the 
fact  that  one  accused  of  crime  fails  in  his  attempt  to  prove 
an  alibi  gives  rise  to  no  inference  that  he  was  present  at  the 
place  charged.247  x 

The  rules  here  announced  apply  in  actions  both  civil  and 
criminal,  and  they  apply  to  all  kinds  of  evidence,  whether 
real,  documentary,  or  testimonial. 

§  38.    Real  or  demonstrative  evidence. 

If  a  party  fabricates,  spoliates,  suppresses,  or  withholds 
evidence  of  the  kind  termed  real  or  demonstrative,  it  may 
give  rise  to  an  unfavorable  inference  as  to  the  truth  of  his 
contentions.248  Thus,  if  a  party  in  possession  of  articles  which 

244  Harris  v.  Rosenberg,  43  Conn.  227. 

245Cowper  v.  Cowper,  2  P.  Wms.  720,  738,  748;  The  Tillie,  7  Ben. 
382,  384,  Fed.  Cas.  No.  14,048;  Lucas  v.  Brooks,  23  La.  Ann.  117;  State 
v.  Chee  Gong,  16  Or.  534;  State  v.  Williams,  27  Vt.  724,  726;  Welty  v. 
L,.  S.  T.  &  T.  R.  Co.,  100  Wis.  128. 

246  Com.  v.  McMahon,  145  Pa.  413;  State  v.  Ward,  61  Vt.  153. 

247Albritton  v.  State,  94  Ala.  76;  People  v.  Malaspina,  57  Cal.  628; 
Miller  v.  People,  39  111.  457;  White  v.  State,  31  Ind.  262;  Toler  v. 
State,  16  Ohio  St.  583;  Turner  v.  Com.,  86  Pa.  54,  27  A.  R.  683. 

2*8  If  a  party  having  the  power  to  introduce  in  evidence  an  object 


g  39  FABRICATION   OF   EVIDENCE.  157 

would  be  admissible  as  self-speaking  instruments  of  evidence 
destroys  or  suppresses  them,  an  inference  that  they  would,  if 
adduced,  prejudice  his  case,  may  arise.249  So,  if  the  plaintiff 
in  an  action  for  personal  injuries  refuses  to  submit  to  a  phys- 
ical examination,  the  jury  may  reasonably  infer  that  his 
motive  for  so  doing  is  the  fear  that  an  examination  would 
disclose  a  condition  unfavorable  to  his  case.250  And  the  same 
is  true  where  a  party  refuses,  in  the  trial  of  a  question  of 
identity,  to  submit  his  person  to  inspection;251  or  where  he 
refuses  to  permit  the  adverse  party  to  view  a  building  which 
concerns  the  matter  in  issue.252 

§  39.    Documents. 

Fabrication  of  documentary  evidence  raises  an  unfavora- 
ble inference  against  the  party  resorting  to  it;253  as  where  a 

whose  appearance  is  in  question  adduces,  instead,  the  testimony  of 
witnesses  as  to  the  appearance  of  the  object,  his  adversary  may  com- 
ment to  the  jury  on  that  fact.  Rex  v.  Hunt,  3  Barn.  &  Aid.  566,  Thayer, 
Cas.  Ev.  730,  731.  Consequently,  a  party  will  be  allowed  to  account 
for  his  failure  to  produce  an  instrument  of  real  evidence  by  showing 
that  the  other  party  has  destroyed  it.  Com.  v.  McHugh,  147  Mass.  401. 

2«  Miller  v.  People,  39  111.  457.  See  Armory  v.  Delamirie,  1  Strange, 
505;  Phoenix  Ins.  Co.  v.  Moog,  78  Ala.  284,  307;  Harris  v.  Rosenberg, 
43  Conn.  227;  Bailey  v.  Shaw,  24,  N.  H.  297,  55  A.  D.  241. 

zso  Union  Pac.  R.  Co.  v.  Botsford,  141  U.  S.  250,  255;  Freeport  v. 
Isbell,  93  111.  381;  Stack  v.  N.  Y.,  N.  H.  &  H.  R.  Co.,  177  Mass.  155, 
157,  83  A.  S.  R.  269,  271;  Shepard  v.  Mo.  Pac.  R.  Co.,  85  Mo.  629,  55 
A.  R.  390,  391.  And 'see  Pa.  Co.  v.  Newmeyer,  129  Ind.  401,  412;  Rob- 
erts v.  O.  &  L.  C.  R.  Co.,  29  Hun  (N.  Y.)  154,  157;  Elfers  v.  Woolley, 
116  N.  Y.  294;  Durgin  v.  Danville,  47  Vt.  95.  See,  however,  McArthur 
v.  State,  59  Ark.  431;  Kinney  v.  Springfield,  35  Mo.  App.  97. 

25iWarlick  v.  White,  76  N.  C.  175,  181  (semble). 

252  Bryant  v.  Stilwell,  24  PA.  314. 

253  u.  S.  v.  Randall,  Deady,  524,  Fed.  Cas.  No.  16,118;   The  Tillie,  7 
Ben.  382,  Fed.  Cas.  No.  14,048;  Winchell  v.  Edwards,  57  111.  41;  Murray 
v.  Lepper,  99  Mich.  135. 


158  LAW  OF   EVIDENCE.  §  39 

person  in  charge  of  account  books  makes  false  entries  in 
them.254 

Spoliation  of  a  document  warrants  an  inference  that  it  is 
unfavorable  to  the  party's  case.255  If,  for  example,  a  party 
defaces  or  destroys  a  record  as  to  facts  material  to  his  case, 
an, inference  may  be  drawn  that  the  record  was  unfavorable 
to  his  contentions.256 

Suppression  of  a  document  may  found  an  inference  that  it 
militates  against  the  case  of  the  party  suppressing  it^257  as 
where  a  party  conceals  a  will  relating  to  the  property  rights  in 
suit.258 

If  a  party  having  the  burden  of  adduction  withholds  docu- 
ments in  his  possession,  the  inference  is  that  they  are  unfavor- 
able to  his  contention.259  Thus,  if  a  party  having  papers  in 

25*Lacey  v.  Hill,  4  Ch.  Div.  537,  543;  Pomeroy  v.  Benton,  77  Mo.  64; 
State  v.  Reinhart,  26  Or.  466;  Dimond  v.  Henderson,  47  Wis.  172. 

255  Gray  v.  Haig,  20  Beav.  219;    Dalston  v.  Coatsworth,   1  P.  Wms. 
731;    The  Hunter,   1   Dod.   480;    The   Pizarro,   2   Wheat.    (U.   S.)    227; 
Downing  v.  Plate,  90  111.  268;   Gage  v.  Parmelee,  87  111.  329;   Love  v. 
Dilley,  64  Md.  238;  Bott  v.  Wood,  56  Miss.  136;   State  v.  Chamberlain, 
89  Mo.  129;   Drosten  v.  Mueller,  103  Mo.  624;   Jones  v.  Knauss,  31  N. 
J.  Eq.  609;  Diehl  v.  Emig,  65  Pa.  320;  Curtis  &  Co.  Mfg.  Co.  v.  Douglass, 
79  Tex.  167.     See  Thompson  v.  Thompson,  9  Ind.  323,  68  A.  D.  638. 

This  principle  is  expressed  in  the  maxims,  In  odium  spoliatoris 
omnia  praesumuntur,  and  Omnia  praesumuntur  contra  spoliatorem. 

256  The  Sam  Sloan,  65  Fed.  125;  Turner  v.  Hawkeye  Tel.  Co.,  41  Iowa, 
458,  20  A.  R.  605,  607;  Murray  v.  Lepper,  99  Mich.  135. 

257Riggs  v.  Pa.  &  N.  E.  R.  Co.,  16  Fed.  804;  State  v.  Chamberlain, 
89  Mo.  129. 

258  Lucas  v.  Brooks,  23  La.  Ann.  117;  In  re  Lambie's  Estate,  97  Mich. 
49. 

259  Lowell  v.  Todd,  15  U.  C.  C.  P.  306;  Attorney  General  v.  Halliday, 
26  U.  C.  Q.  B.  397;  Rector  v.  Rector,  8  111.  105;   Eldridge  v.  Hawley, 
115  Mass.  410;   State  v.  Simons,  17  N.  H.  83;   Cross  v.  Bell's  Adm'rs, 
34  N.  H.  82;  Mclntyre  v.  Ajax  Min.  Co.,  17  Utah,  213. 

This  inference  is  strengthened  where  the  party  has  been  duly  noti- 
fied to  produce  the  document.  Crescent  City  Ice  Co.  v.  Ermann,  36 
La.  Ann.  841. 


§  40  FABRICATION   OF   EVIDENCE.  159 

his  possession  which  directly  bear  on  the  title  he  asserts 
fails  to  put  them  in  evidence,  the  inference  is  that  they  mili- 
tate against  his  case.260  So  if  a  party,  having  the  burden  of 
adduction,  fails,  without  explanation,  to  adduce  the  best  evi- 
dence of  the  fact  in  dispute,  and  offers  instead  evidence  of 
an  inferior  kind,  an  inference  may  be  drawn  that  the  superior 
evidence  would  operate  to  his  prejudice.261  And  if  an  in- 
strument is  withheld  by  the  adverse  party  after  notice  to  pro- 
duce, it  is  presumed  to  have  borne  a  stamp,  if  instruments  of 
that  nature  are  required  to  be  stamped.282  In  some  states, 
however,  it  is  held  that  mere  nonproduction  of  a  document 
does  not  justify  an  unfavorable  inference  against  the  party, 
where  he  has  not  been  notified  to  produce  it.263 

§  40.    Testimony. 

Fabrication  of  testimonial  evidence  may  justify  an  infer- 
ence that  the  truth  is  unfavorable  to  the  party's  case.264  Thus 

2«o  Attorney  General  v.  Dean  of  Queen's  Free  Chapel,  24  Beav.  679; 
Roe  d.  Haldane  v.  Harvey,  4  Burrow,  2484;  James  v.  Biou,  2  Sim.  &  S. 
€00;  Merwin  v.  Ward,  15  Conn.  377;  Lee  v.  Lee,  9  Pa.  169. 

zeiRunkle  v.  Burnham,  153  U.  S.  216,  225;  Clifton  v.  U.  S.,  4  How. 
(U.  S.)  242;  Leese  v.  Clark,  29  Cal.  664;  Savannah,  F.  &  W.  R.  v.  Gray, 
77  Ga.  440,  443  (semble) ;  Davie  v.  Jones,  68  Me.  393;  Spring  Garden 
Mut.  Ins.  Co.  v.  Evans,  9  Md.  1,  66  A.  D.  308  (semble) ;  Page  v. 
Stephens,  23  Mich.  357;  Church  v.  Church,  25  Pa.  278.  And  see  Rex 
v.  Hunt,  3  Barn.  &  Aid.  566,  Thayer,  Gas.  Ev.  730,  731;  Turner  v. 
Turner,  79  Cal.  565.,  This  presumption  is  voiced  by  statute  in  some 
states.  People  v.  Dole,  122  Cal.  486,  68  A.  S.  R.  50;  Mooney  v.  Hoi- 
comb,  15  Or.  639. 

262  Crisp  v.  Anderson,  1  Starkie,  35. 

268  Emerson  v.  Fisk,  6  Me.  200,  19  A.  D.  206,  209;  Tobin  v.  Shaw, 
45  Me.  331,  71  A.  D.  547,  554;  Diel  v.  Mo.  Pac.  R.  Co.,  37  Mo.  App.  454, 
459  (semble);  Watkins  v.  Pintard,  1  N.  J.  Law,  378;  Sullivan  v.  Cranz, 
21  Tex.  Civ.  App.  498. 

264  charge  of  the  Lord  Chief  Justice  in  Reg.  v.  Castro  (Tichborne 
Trial),  I,  813;  Walker  v.  State,  49  Ala.  398;  State  v.  Reed,  62  Me.  129; 
People  v.  Arnold,  43  Mich.  303,  38  A.  R.  182;  Toler  v.  State,  16  Ohio 


160  LAW   OF   EVIDENCE.  g   40 

it  may  be  shown  against  a  party  that  he  attempted  to  in- 
fluence the  testimony  of  a  witness  by  an  offer  of  money.28* 

Suppression  of  testimonial  evidence,  as  by  removal  or  in- 
timidation of  a  prospective  witness,  may  justify  an  infer- 
ence that  it  is  unfavorable  to  the  party's  case.266  For  instance, 
it  may  be  shown  against  a  party  that  he  bribed  or  attempted 
to  bribe  a  person  acquainted  with  the  facts  in  dispute  to- 
absent  himself  from  the  trial.267 

If  a  party  having  the  burden  of  adduction  withholds  testi- 
monial evidence  which,  under  the  circumstances,  he  might 
reasonably  be  expected  to  produce,  an  inference  is  justified 
that  it  is  unfavorable  to  him.268  This  rule  is  instanced  by  a 

St.  583,  585;  Com.  v.  McMahon,  145  Pa.  413;  Boyd  v.  State,  16  Lea 
(Tenn.)  149  (semble);  State  v.  Williams,  27  Vt.  724;  Dean  v.  Com.,. 
32  Grat.  (Va.)  912. 

265  Moriarty  v.  London,  C.  &  D.  R.  Co.,  L.  R.  5  Q.  B.  314,  Thayer,. 
Cas.  Ev.  114;  Chicago  C.  R.  Co.  v.  McMahon,  103  111.  485,  42  A.  R.  29; 
Sater  v.  State,  56  Ind.  378  (semble) ;  Egan  v.  Bowker,  5  Allen  (Mass.) 
449;  Com.  v.  Sacket,  22  Pick.  (Mass.)  394;  State  v.  Staples,  47  N- 
H.  113,  90  A.  D.  565;  Nowack  v.  M.  S.  R.  Co.,  166  N.  Y.  433,  54  L.  R. 
A.  592;  McHugh  v.  McHugh,  186  Pa.  197,  65  A.  S.  R.  849.  Conse- 
quently, if  a  prima  facie  case  of  tampering  with  a  witness  is  made- 
against  a  party,  he  may  testify  in  explanation  of  his  conduct.  Lynch 
v.  Coffin,  131  Mass.  311. 

see  Annesley's  Lessee  v.  Anglesea,  17  How.  State  Tr.  1139,  1217,  1430; 
People  v.  Chin  Hane,  108  Cal.  597;  Com.  v.  Webster,  5  Gush.  (Mass.) 
295,  52  A.  D.  711;  State  v.  Barren,  37  Vt.  57;  Snell  v.  Bray,  56  Wis. 
156. 

267  Houser  v.  Austin,  2  Idaho,  204,   212;    Chicago  C.  R.   Co.  v.  Mc- 
Mahon, 103  111.  485,  42  A.  R.  29;  Cruikshank  v.  Gordon,  118  N.  Y.  178; 
Carpenter  v.  Willey,  65  Vt.  168. 

268  ENGLAND:     Rex  v.  Burdett,  4  Barn.  &  Aid.  95. 

UNITED  STATES:  The  FYed  M.  Laurence,  15  Fed.  635;  The  Ville  Du 
Havre,  7  Ben.  328,  Fed.  Cas.  No.  16,943;  Graves  v.  U.  S.,  150  U.  S.  118,. 
121;  Kirby  v.  Tallmadge,  160  U.  S.  379. 

ALABAMA:     Carter  v.  Chambers,  79  Ala.  223,  231. 

ABKANSAS:     Fordyce  v.  McCants,  55  Ark.  384. 

COLORADO:  Little  Pittsburg  Consol.  Min.  Co.  v.  Little  Chief  ConsoL 
Min.  Co.,  11  Colo.  223,  7  A.  S.  R.  226,  235. 


§  40  FABRICATION   OF   EVIDENCE.  161 

failure  to  call  or  to  fully  examine  a  person  having  knowledge 
of  the  facts  in  dispute  ;209  as  where,  in  an  action  for  negligence, 
the  defendant  fails  to  call  employes  in  charge  when  the  acci- 
dent occurred.270  So,  if  the  truth  or  falsity  of  a  disputed  fact 
is  known  to  a  party,  his  omission  to  take  the  stand  and  deny 
its  existence  may  afford  an  inference  of  its  truth.271 

CONNECTICUT:     State  v.  Hogan,  67  Conn.  581. 

INDIANA:     Hinshaw  v.  State.  147  Ind.  334. 

IOWA:     State  v.  Rodman,  62  Iowa,  456. 

MASSACHUSETTS:  Com.  v.  Clark,  14  Gray,  367;  Com.  v.  McCabe,  163 
Mass.  98;  McKim  v.  Foley,  170  Mass.  426;  Learned  v.  Hall,  133  Mass. 
417;  Com.  v.  Webster,  5  Gush.  295,  52  A.  D.  711. 

MICHIGAN:     People  v.  Mills,  94  Mich.  630,  638. 

NEW  YOBK:     Gordon  v.  People,  33  N.  Y.  501. 

OBEGON:     Wimer  v.  Smith,  22  Or.  469,  478. 

PENNSYLVANIA:  Frick  v.  Barbour,  64  Pa.  120;  Rice  v.  Com.,  102  Pa. 
408. 

WASHINGTON:     Leonard  v.  Ter.,  2  Wash.  T.  381,  399. 

And  see  Wood  v.  Holly  Mfg.  Co.,  100  Ala.  326,  46  A.  S.  R.  56. 

269  people  v.  Cline,  83  Cal.  374;  In  re  Barber's  Estate,  63  Conn.  393, 
22  L.  R.  A.  90,  95;  People  v.  Gordon,  40  Mich.  716;  Grubbs  v.  N.  C.  H. 
Ins.  Co.,  108  N.  C.  472,  23  A.  S.  R.  62;   Crumes  v.  State,  28  Tex.  App. 
516,  19  A.  S.  R.  853;   Kircher  v.  M.  M.  Mut.  Ins.  Co.,  74  Wis.  470,  5 
L.  R.  A.  779.     And  see  cases  cited  in  preceding  note. 

If  a  party  puts  a  witness  on  the  stand,  and  in  the  examination  fails 
to  question  him  as  to  a  material  point  within  his  knowledge,  the  in- 
ference is  that  the  witness  would  testify  unfavorably  to  the  party  on 
that  point.  Seward  v.  Garlin,  33  Vt.  583. 

270  Gulf,  C.  &  S.  F.  R.  Co.  v.  Ellis,  54  Fed.  481;  The  Jos.  B.  Thomas, 
81  Fed.  578;  Western  &  A.  R.  Co.  v.  Morrison,  102  Ga.  319,  66  A.  S.  R. 
173;  Barnes  v.  Shreveport  City  R.  Co.,  47  La.  Ann.  1218,  49  A.  S.  R. 
400;  Fonda  v.  St.  P.  C.  R.  Co.,  71  Minn.  438,  70  A.  S.  R.  341;   Banner 
v.  S.  C.  R.  Co.,  4  Rich.  Law   (S.  C.)   329,  55  A.  D.  678;  Flannegan  v. 
C.  &  O.  R.  Co.,  40  W.  Va.  436,  52  A.  S.  R.  896. 

This  inference  does  not  thus  arise  unless  it  appears  that  the  em- 
ployes in  question  had  personal  knowledge  of  the  facts.  Peetz  v.  St. 
C.  St.  R.  Co.,  42  La.  Ann.  541. 

271  Tufts  v.  Hatheway,  4  Allen  (N.  B.)  62;  Miller  v.  Jones,  32  Ark. 
337;   Perkins  v.  Hitchcock,  49  Me.  468;   Union  Bank  v.  Stone,  50  Me. 
595,  79  A.  D.  631;  Lynch  v.  Peabody,  137  Mass.  92;   People  v.  Swine- 

Hammon,  Ev. — 11. 


162  LAW   OF   EVIDENCE.  §   41 

§  41.    Qualifications  of  rule. 

An  unfavorable  inference  does  not  arise  from  the  spoliation 
of  evidence,  where  it  occurred  through  accident  or  mistake, 
or  necessity  or  superior  force.272 

The  unfavorable  inference  drawn  from  the  nonproduction 
of  evidence,  whether  real,  documentary,  or  testimonial,  arises 
only  when  the  necessity  of  adducing  evidence  rests  upon  the 
party  withholding  it.  If  the  burden  of  adduction  is  on  the 
adverse  party,  the  inference  does  not  arise.273 

ford,  77  Mich.  573;  Hall  v.  Austin,  73  Minn.  134;  Conn.  Mut.  L.  Ins. 
Co.  v.  Smith,  117  Mo.  261,  38  A.  S.  R.  656;  Werner  v.  Litzsinger,  45 
Mo.  App.  106;  In  re  Randel,  158  N.  Y.  216;  People  v.  Dyle,  21  N.  Y. 
578;  Helms  v.  Green,  105  N.  C.  251,  18  A.  S.  R.  893;  Enos  v.  St.  P. 
F.  &  M.  Ins.  Co.,  4  S.  D.  639,  46  A.  S.  R.  796.  Contra,  Thompson  v. 
Davitte,  59  Ga.  472,  480  (semble) ;  Lowe  v.  Massey,  62  111.  47.  This  is 
true  in  equity  as  well  as  at  law.  McDonough  .v.  O'Niel,  113  Mass.  92. 
An  unfavorable  inference  may  arise  from  a  party's  absenting  him- 
self from  the  trial,  and  so  failing  to  testify.  Throckmorton  v.  Chap- 
man, 65  Conn.  441;  Cole  v.  L.  S.  &  M.  S.  R.  Co.,  95  Mich.  77,  81  Mich. 
156. 

272  The  Pizarro,  2  Wheat.   (U.  S.)   227,  241   (semble);   Bagley  v.  Mc- 
Mickle's  Adm'rs,  9  Cal.  430;    The  Count  Joannes  v.  Bennett,   5  Allen 
(Mass.)   173,  81  A.  D.  738,  740  (semble). 

Destruction  of  a  document  pursuant  to  advice  was  held  excusable 
m  Drosten  v.  Mueller,  103  Mo.  624.  And  see  Hay  v.  Peterson,  6  Wyo. 
419,  34  L.  R.  A.  581. 

Throwing  away  the  broken  parts  of  a  machine  was  held  not  to  raise 
a  presumption  against  the  party  so  doing,  where  he  had  allowed  the 
other  party  to  inspect  them.  Williamson  v.  Rover  Cycle  Co.  [1901] 
2  Ir.  Rep.  615.  And  see  Hay  v.  Peterson,  supra. 

273  Brill  v.  St.  L.  Car  Co.,  80  Fed.  909    (semble) ;   Pollak  v.  David- 
son, 87  Ala.  551,  557;   Gage  v.  Parmelee,  87  111.  329   (semble);   Spring 
Garden  Mut.  Ins.  Co.  v.  Evans,  9  Md.  1,  66  A.  D.  308;   Price  v.  Phila., 
W.  &  B.  R.  Co.,  84  Md.  506,  36  L.  R.  A.  213;  Meagley  v.  Hoyt,  125  N. 
Y.  771;  Norfolk  &  W.  R.  Co.  v.  Brown,  91  Va.  668,  674  (semble).    And 
see  Maddox  v.  Maddox,  114  Mo.  35,  35  A.  S.  R.  734. 

Thus,  no  inference  of  bad  character  arises  from  the  fact  that  the  ac- 
cused in  a  criminal  case  fails  to  adduce  evidence  of  good  character. 
State  v.  Dockstader,  42  Iowa,  436;  State  v.  Upham,  38  Me.  261;  Olive 


§  41  FABRICATION   OF   EVIDENCE.  163 

This  rule  would  seem  to  afford  a  sure  and  simple  test  to 
determine  whether  an  unfavorable  inference  may  be  drawn 
against  a  party  who  refuses  to  comply  with  notice  to  produce 
a  document,  or  whether  his  noncompliance  merely  authorizes 
the  adverse  party  to  prove  the  contents  of  the  document  by 
secondary  evidence.  If  the  burden  of  adducing  evidence  upon 
a  given  point  rests  upon  a  party,  and  he  fails  to  introduce  a 
document  in  his  possession  which  bears  upon  the  matter,  his 
failure  should-  give  rise  to  an  inference  that  the  document 
militates  against  his  case;274  and  this  should  be  the  rule, 
even  though  the  adverse  party  has  not  notified  him  to  produce 
the  document.275  If,  on  the  other  hand,  the  burden  of  adduc- 
tion does  not  rest  on  the  party  who  fails  to  produce  a  docu- 
ment relating  to  the  point  in  dispute,  then  his  failure  to  offer 
the  instrument  in  evidence  should  give  rise  to  no  unfavorable 
inference  against  him;276  and  this  should  be  so,  even  though 
he  has  been  notified  to  produce  the  document.  The  only  effect 
of  noncompliance  with  the  notice  to  produce  an  instrument 
which  the  burden  of  adduction  does  not  require  a  party  to 
adduce  should  be  to  justify  the  admission  of  secondary  evi- 
dence of  the  contents  of  the  document.277 

The  failure  of  a  party  to  testify  does  not  justify  an  infer- 

v.  State,  11  Neb.  1;  People  v.  Bodine,  1  Denio  (N.  Y.)  281;  State  v. 
O'Neal,  29  N.  C.  (7  Ired.)  251;  Com.  v.  Weber,  167  Pa.  153  (semble). 
And  an  unfavorable  presumption  does  not  arise  against  defendant  be- 
cause he  fails  to  produce  evidence,  where  plaintiff  fails  to  offer  suffi- 
cient evidence  to  take  the  case  to  the  jury.  Price  v.  Phila.,  W.  &  B. 
R.  Co.,  84  Md.  506,  36  L.  R.  A.  213;  Arbuckle  v.  Templeton,  65  Vt. 
205. 

274  See  cases  cited  in  notes  259,  260,  supra.    Cases  having  a  contrary 
bearing  will  be  found  in  notes  297,  298,  301,  303,  infra. 

275  Contra,  Watkins  v.  Pintard,  1  N.  J.  Law,  378  (semble). 

276  See  cases  cited  in  notes  273,  supra,  and  297,  298,  infra.     Cases 
tending  to  the  contrary  will  be  found  in  notes  259,  260,  supra. 

277  See  cases  cited  in  notes  301,  303,  infra. 


164  LAW   OF   EVIDENCE.  §   41 

ence  against  him,  where  he  is  unavoidably  absent.278  Nor  is 
an  unfavorable  inference  justified  by  the  nonproduction  of 
evidence  which  is  not  within  the  party's  control;279  nor, 
generally  speaking,  where  the  evidence  is  equally  accessible 
to  the  adverse  party.280  Neither  does  it  arise  where  the  per- 

278  Hall  v.  Austin,  73  Minn.  134;  Brown  v.  Barse,  10  App.  Div.  (N. 
Y.)  444  (semble).  See  Pollak  v.  Davidson,  87  Ala.  551;  Throckmorton 
v.  Chapman,  65  Conn.  442,  455.  Consequently,  it  may  be  shown  in  the 
trial  that  the  party  is  unable  to  attend.  Hall  v.  Austin,  supra. 

2T9  Doe  d.  Gilbert  v.  Ross,  7  Mees.  &  W.  102 ;  Savannah,  F.  &  W.  R. 
Co.  v.  Gray,  77  Ga.  440;  Com.  v.  Webster,  5  Gush.  (Mass.)  295,  52  A. 
D.  711,  728;  McKim  v.  Foley,  170  Mass.  426  (semble);  Com.  v.  Costello, 
119  Mass.  214;  People  v.  Sharp,  107  N.  Y.  427,  1  A.  S.  R.  851,  875; 
Hallstead  v.  Curtis,  143  Pa.  352,  13  L.  R.  A.  370;  Weatherford,  M.  W. 
&  N.  W.  R.  Co.  v.  Duncan,  88  Tex.  611.  Consequently,  a  party  has 
ordinarily  the  right  to  account  for  the  absence  of  a  material  wit- 
ness or  instrument  of  evidence  by  showing  that  he  has  no  control  over 
the  same.  State  v.  Hogan,  67  Conn.  581;  Com.  v.  McHugh,  147  Mass. 
401;  Com.  v.  Costello,  119  Mass.  214;  Pease  v.  Smith,  61  N.  Y.  477; 
Weatherford,  M.  W.  &  N.  W.  R.  Co.  v.  Duncan,  88  Tex.  611.  But  this 
evidence  will  not  be  admitted  in  a  criminal  case  at  the  instance  of 
the  prosecution,  if  its  tendency  is  to  prejudice  the  accused,  except  in 
answer  to  evidence  offered  by  the  accused.  People  v.  Sharp,  107  N.  Y. 
427,  1  A.  S.  R.  851,  875. 

It  seems  that  the  necessity  of  showing  that  an  absent  witness  is 
accessible  rests  upon  the  party  asking  the  benefit  of  the  unfavorable 
inference.  Cross  v.  L.  S.  &  M.  S.  R.  Co.,  69  Mich.  363,  13  A.  S.  R. 
399;  People  v.  Sharp,  107  N.  Y.  427,  1  A.  S.  R.  851,  875. 

aso  Crawford  v.  State,  112  Ala.  1;  TSTelms  v.  Steiner,  113  Ala.  562; 
Scovill  v.  Baldwin,  27  Conn.  316;  State  v.  Cousins,  58  Iowa,  250;  Don- 
ald v.  C.,  B.  &  Q.  R.  Co.,  93  Iowa,  284,  33  L.  R.  A.  492;  Com.  v.  Web- 
ster, 5  Gush.  (Mass.)  295,  52  A.  D.  711,  728;  Cross  v.  L.  S.  &  M.  S. 
R.  Co.,  69  Mich.  363,  13  A.  S.  R.  399  (semble);  Cole  v.  L.  S.  &  M.  S. 
R.  Co.,  81  Mich.  156,  161  (semble);  Fonda  v.  St.  P.  City  R.  Co.,  71 
Minn.  438,  70  A.  S.  R.  341,  350;  Farmers'  Bank  v.  Worthington,  145 
Mo.  91;  Diel  v.  Mo.  Pac.  R.  Co.,  37  Mo.  App.  454;  State  v.  Fitzgerald. 
68  Vt.  125.  See,  however,  Eldridge  v.  Hawley,  115  Mass.  410;  Harri- 
man  v.  R.  &  L.  St.  R.  Co.,  173  Mass.  28;  Wellar  v.  People,  30  Mich.  17. 

However,  a  party  is  not  obliged,  at  the  risk  of  incurring  the  disad- 
vantage incident  to  this  inference,  "to  go  into  the  enemy's  camp"  for 


§  41  FABRICATION    OF    EVIDENCE.  165 

son  not  called  as  a  witness  is  clearly  prejudiced  against  the 
party;281  nor  where  the  evidence  would  not  be  superior  to 
that  already  adduced,  as  where  the  fact  in  dispute  is  other- 
wise fully  proved,  so  that  the  evidence  withheld  would  be 
merely  corroboratory  or  cumulative,282  or  where  the  fact  is 
admitted.283  An  unfavorable  presumption  is  not  justified 
where  the  evidence  withheld  would  be  inadmissible.284  Thus, 
a  party's  failure  to  testify  or  to  call  a  certain  person  as  a  wit- 
ness does  not  operate  against  him  where  neither  he  nor  the 

evidence.  Western  &  A.  R.  Co.  v.  Morrison,  102  Ga.  319,  66  A.  S.  R. 
173;  Com.  v.  McCabe,  163  Mass.  98  (semble) ;  Fonda  v.  St.  P.  City  R. 
Co.,  71  Minn.  438,  70  A.  S.  R.  341,  350;  Robinson  v.  Woodford,  37  W. 
Va.  377.  Contra,  Lowe  v.  Massey,  62  111.  47,  49  (semble). 

281  Coykendall  v.   Eaton,  42  How.   Pr.    (N.   Y.)    378.     See  Wellar  v. 
People,  30  Mich.  17.     See  note  280,  supra. 

282  Bates  v.  Morris,  101  Ala.  282,  287;   Haynes  v.  McRae,  101  Ala. 
318;    Carter  v.  Chambers,  79  Ala.  223;    Jackson  v.  State,  77  Ala.  18; 
McGar  v.  Adams,  65  Ala,  106;  People  v.  Dole,  122  Cal.  486,  68  A.  S.  R. 
50,  57;  Savannah,  F.  &  W.  R.  v.-Gray,  77  Ga.  440;  Farrand  v.  Aldrich, 
85  Mich'.  593;   Fonda  v.  St.  P.  City  R.  Co.,  71  Minn.  438,  452,  70  A.  S. 
R.  341,  350. 

If  the  contents  of  a  document  are  fully  proved  by  secondary  evidence, 
no  unfavorable  inference  can  arise  from  the  other  party's  having  failed 
to  produce  it.  Saltern  v.  Melhuish,  1  Amb.  247,  249;  Cartier  v.  Troy 
Lumber  Co.,  138  111.  533,  14  L.  R.  A.  470.  Nor  can  an  unfavorable 
inference  be  drawn  where  the  contents  of  a  document  which  a  party 
has  wrongfully  destroyed  are  fully  proved  by  secondary  evidence.  Bott 
v.  Wood,  56  Miss.  136;  East  Tenn.,  V.  &  G.  R.  Co.  v.  Kane,  92  Ga.  187, 
22  L.  R.  A.  315;  Cartier  v.  Troy  Lumber  Co.,  supra. 

MS  Bleecker  v.  Johnston,  69  N.  Y.  309;  Mooney  v.  Holcomb,  15  Or. 
«39;  Weeks  v.  McNulty,  101  Tenn.  495,  70  A.  S.  R.  693  (semble). 

284  Carpenter's  Estate  v.  Bailey,  94  Cal.  406;  Law  v.  Woodruff,  48 
111.  399;  Com.  v.  Ryan,  134  Mass.  223,  225.  See,  however,  Sutton  v. 
Devonport,  27  Law  J.  C.  P.  54. 

It  has  been  held  that,  if  documents  which  a  party  has  been  notified 
lo  produce  are  not  admissible  in  his  own  behalf,  an  unfavorable  in- 
ference does  not  arise  against  him  because  he  refuses  to  produce  them, 
even  though  they  are  admissible  in  behalf  of  the  other  party.  Merwin 
v.  Ward,  15  Conn.  377;  Cartier  v.  Troy  Lumber  Co.,  138  111.  533,  14  L. 
R.  A.  470. 


166  LAW   OF   EVIDENCE.  §  41 

witness  has  personal  knowledge  of  the  matter  in  question;285 
nor,  in  some  jurisdictions,  where  the  communication  to  which 
the  witness  would  testify  is  privileged.286  Neither  does  an 
unfavorable  inference  arise  from  the  failure  to  call  as  a  wit- 
ness a  person  who  is  disqualified  to  testify  as  such;287  nor, 
in  some  jurisdictions,  where  the  witness  is  privileged.288  So, 
where  one  accused  of  crime  exercises  his  constitutional  or 
statutory  privilege  of  refusing  to  testify,  he  is  not  to  be  preju- 
diced thereby.289 


v.  Davidson,  87  Ala.  551,  557;  Savannah,  F.  &  W.  R.  v. 
Gray,  77  Ga.  440;  Peetz  v.  St.  C.  St.  R.  Co.,  42  La.  Ann.  541;  Hitch- 
cock v.  Davis,  87  Mich.  629;  Wilson  v.  St.  L.  &  S.  F.  R.  Co.,  108  Mo. 
588,  32  A.  S.  R.  624;  Weeks  v.  McNulty,  101  Tenn.  495,  70  A.  S.  R. 
693. 

286Wentworth  v.  Lloyd,  10  H.  L.  Cas.  589;  French  v.  Deane,  19  Colo. 
504,  24  L.  R.  A.  387,  392;  Knowles  v.  People,  15  Mich.  408;  Lane  v. 
S.  F.  &  N.  R.  Co.,  21  Wash.  119,  46  L.  R.  A.  153.  See,  however,  Throck- 
morton  v.  Chapman,  65  Conn.  441.  Contra,  Vergin  v.  Saginaw,  125 
Mich.  499;  Cooley  v.  Foltz,  85  Mich.  47;  People  v.  Hovey,  92  N.  Y. 
554;  Com.  v.  Weber,  167  Pa.  153. 

287  Graves  v.  U.  S.,  150  U.  S.  118;  Adams  v.  Main,  3  Ind.  App.  232, 
50  A.  S.  R.  266;  Cramer  v.  Burlington,  49  Iowa,  213;  Stafford  v.  Morn- 
ing Journal  Ass'n,  68  Hun  (N.  Y.)  467;  Hoard  v.  State,  15  Lea  (Tenn.) 
318. 

zss  Millman  v.  Tucker,  Peake  Add.  Cas.  222;  Rose  v.  Blakemore, 
Ryan  &  M.  383;  Came  v.  Litchfield,  2  Mich.  340;  State  v.  Hatcher,  29 
Or.  309;  Phelin  v.  Kenderdine,  20  Pa.  354.  Contra,  Cent.  S.  &  G.  Exch. 
v.  Chicago  Board  of  Trade,  196  111.  396,  407  (semble)  ;  Morgan  v.  Ken- 
dall, 124  Ind.  454,  9  L.  R.  A.  445;  Andrews  v.  Frye,  104  Mass.  234. 

ass  UNITED  STATES:  Chaff  ee  v.  U.  S.,  18  Wall.  516;  Wilson  v.  U.  S., 
149  U.  S.  60. 

CALIFORNIA:  People  v.  Sanders,  114  Cal.  216;  People  v.  Dole,  122 
Cal.  486,  68  A.  S.  R.  50,  57  (semble);  People  v.  Streuber,  121  Cal.  431; 
People  v.  Tyler,  36  Cal.  522. 

ILLINOIS:     Quinn  v.  People,  123  111.  333. 

INDIANA:  Long  v.  State,  56  Ind.  182,  26  A.  R.  19;  Hinshaw  v.  State, 
147  Ind.  334,  367. 

IOWA:     State  v.  Baldoser,  88  Iowa,  55. 

LOUISIANA:  State  v.  Carr,  25  La.  Ann.  407;  State  v.  Johnson,  50 
La.  Ann.  138. 


§  42  FABRICATION    OF   EVIDENCE.  167 

§  42.    Nature  and  effect  of  presumption. 

The  inference  arising  from  the  fabrication,  spoliation,  sup- 
pression, or  nonproduction  of  evidence  is  usually  termed  a 
presumption,  but  it  is  not  a  presumption  of  law;  it  is  only 
a  presumption  of  fact  in  the  nature  of  an  implied  admission. 
Consequently  it  rests  with  the  jury  to  say  whether  or  not  it 
shall  be  indulged  in  a  given  case,290  and  what  weight  shall 
be  given  it  if  indulged;291  and  being  nothing  but  a  presump- 

MICHIGAN:     People  v.  Seaman,  107  Mich.  348,  61  A.  S.  R.  326. 

MINNESOTA:     State  v.  Holmes,  65  Minn.  230. 

MISSISSIPPI:     Reddick  v.  State,  72  Miss.  1008. 

NEW  YORK:  People  v.  Hayes,  140  N.  Y.  484.  23  L.  R.  A.  830;  People 
v.  Hoch,  150  N.  Y.  291;  Ruloff  v.  People,  45  N.  Y.  213. 

OHIO:     Calkins  v.  State,  18  Ohio  St.  366,  98  A.  D.  121. 

RHODE  ISLAND:     State  v.  Hull,  18  R.  I.  207,  20  L.  R.  A.  609. 

Contra,  Reg.  v.  Rhodes  [1899]  1  Q.  B.  77;  State  v.  Lawrence,  57  Me. 
574;  State  v.  Cleaves,  59  Me.  298,  8  A.  R.  422;  Parker  v.  State,  61  N. 
J.  Law.  308. 

If,  however,  the  accused  elects  to  testify,  and  fails  to  rebut  any 
criminating  fact  which  it  is  within  his  power  to  rebut,  a  presumption 
arises  against  him  in  the  nature  of  an  implied  admission.  Cotton  v. 
State,  87  Ala.  103;  State  v.  Glave,  51  Kan.  330;  Stover  v.  People,  56 
N.  Y.  315.  And  the  same  is  true  where  the  accused  elects  to  testify, 
and  then  refuses  to  submit  to  cross-examination.  State  v.  Ober,  52 
N.  H.  459,  13  A.  R.  88.  See  Taylor  v.  Com.,  17  Ky.  L.  R.  1214,  34  S. 
W.  227;  Com.  v.  Mullen,  97  Mass.  545. 

A  reference  to  the  fact  that  an  accused,  who  has  failed  to  testify, 
has  a  legal  right  to  take  the  stand,  does  not  require  a  reversal  of  a 
verdict  of  conviction  if  made  in  good  faith  for  the  purpose  of  illustrat- 
ing an  entirely  different  matter.  Watt  v.  People,  126  111.  9,  1  L.  R. 
A.  403. 

An  attorney  proceeded  against  for  disbarment  is  not  privileged  from 
any  inference  arising  from  his  failure  to  contradict  testimony  as  to 
facts  within  his  personal  knowledge.  In  re  Randel,  158  N.  Y.  216. 

280  Western  &  A.  R.  Co.  v.  Morrison,  102  Ga.  319,  66  A.  S.  R.  173, 
175;  Thompson  v.  Davitte,  59  Ga.  472,  480;  Cartier  v.  Troy  Lumber 
Co.,  138  111.  533;  Sater  v.  State,  56  Ind.  378;  Eldridge  v.  Hawley,  115 
Mass.  410;  Com.  v.  Haskell,  140  Mass.  128;  Boyd  v.  State,  16  Lea 
(Tenn.)  149. 

29i  Fordyce  v.  McCants,  55  Ark.  384. 


168  LAW   OF   EVIDENCE.  §  42 

tion  of  fact, — that  is,  a  mere  inference, — it  is,  of  course,  re- 
buttable.292 

As  to  the  extent  to  which  the  fabrication,  spoliation,  sup- 
pression, or  nonproduction  of  evidence  shall  operate,  it  is 
held  by  the  weight  of  authority  that  the  act  throws  suspicion 
on  the  truth  of  the  party's  claim,  and  thus  operates  to  require 
a  greater  weight  of  evidence  to  establish  his  contention  than 
the  jury  might  otherwise  require.  Involved  in  this  effect  of 
the  act  is  its  reverse  operation  of  creating  an  impression  in 
favor  of  the  truth  of  the  adverse  contention  of  the  other  party 
respecting  the  fact  in  issue,  and  so  requiring  evidence  of  less 
weight  to  support  that  contention  than  the  jury  might  other- 
wise require.293  The  inference,  therefore,  is  a  means,  and 

merely  a  means,  of  weighing  the  evidence  actually  produced 

« 

with  reference  to  the  fact  in  dispute.294  It  does  not  dispense 
with  the  necessity  of  adducing  evidence,  where  that  neces- 
sity otherwise  rests  on  the  party  in  whose  favor  the  inference 
operates.295  It  has  no  independent  probative  effect  as  to 
the  truth  of  the  matter  in  dispute,  and  of  itself  is  not  suffi- 

292  Crisp  v.  Anderson,  1  Starkie,  35;  The  Pizarro,  2  Wheat.  (U.  S.) 
227;   Thompson  v.  Thompson,  9  Ind.  323,  68  A.  D.  638;   Cole  v.  L.  S. 
&  M.  S.  R.  Co.,  81  Mich.  156;  Drosten  v.  Mueller,  103  Mo.  624;  Durgin 
v.  Danville,  47  Vt.  95;  Hay  v.  Peterson,  6  Wyo.  419,  34  L.  R.  A.  581. 

293  Charge  of  the  Lord  Chief  Justice  in  Reg.  v.  Castro   (Tichborne 
Trial)   I,  813;  Diel  v.  Mo.  Pac.  R.  Co.,  37  Mo.  App.  454,  459  (semble) ; 
Werner  v.  Litzsinger,  45  Mo.  App.  106. 

The  fabrication  of  evidence  discredits  independent  evidence  adduced 
by  the  same  party  on  the  same  point.  The  Tillie,  7  Ben.  382,  Fed.  Cas. 
No.  14,048. 

2»*  Fonda  v.  St.  P.  City  R.  Co.,  71  Minn.  438,  70  A.  S.  R.  341,  350 
(semble).  See  Gray  v.  Haig,  20  Beav.  219;  Wallace  v.  Harris,  32 
Mich.  380,  394. 

*«5  Gage  v.  Parmelee,  87  111.  329;  Ellis  v.  Sanford,  106  Iowa,  743 
(semble);  Donald  v.  C.,  B.  &  Q.  R.  Co.,  93  Iowa,  284,  33  L.  R.  A.  492; 
Diel  v.  Mo.  Pac.  R.  Co.,  37  Mo.  App.  454;  Arbuckle  v.  Templeton,  65 
Vt.  205.  And  see  Chaffee  v.  U.  S.,  18  Wall.  (U.  S.)  516. 


$    42a  FABRICATION   OF   EVIDENCE.  169 

cient  evidence  to  take  the  case  to  the  jury  on  that  point, — 
much  less  does  it  make  a  prima  facie  case  against  the  party 
against  whom  it  operates.296 

(a)  Effect  as  to  secondary  evidence.  In  regard  to  documen- 
tary evidence,  the  inference  arising  from  spoliation,  suppres- 
sion, or  nonproduction  of  a  document  does  not  dispense  with 
the  necessity  of  secondary  evidence  of  its  contents.297  Its  ef- 
fect, and  its  only  effect,  in  this  connection,  is  to  aid  that  species 
of  proof,  and  thus  render  the  contents  of  the  document  suscep- 
tible of  establishment  by  slight  evidence.298  The  same  rule  ap- 
plies in  case  of  the  nonproduction  of  a  document  which  the 
party  has  been  notified  to  produce.  Accordingly,  if  the  party 
calling  for  the  document  attempts  to  prove  its  contents  by  sec- 
ondary evidence  which  is  imperfect  and  vague  in  detail,  or 
which  is  contradicted,  every  inference  arising  from  that  evi- 
dence is  to  be  taken  most  strongly  against  the  nonproducing 
party.299  And  the  fact  of  refusal  to  produce  may  be  consid- 

aeoMeagley  v.  Hoyt,  125  N.  Y.  771;  Norfolk  &  W.  R.  Co.  v.  Brown, 
91  Va.  668,  674.  See  Woodhull  v.  Whittle,  63  Mich.  575.  Contra, 
Charge  of  the  Lord  Chief  Justice  in  Reg.  v.  Castro  (Tichborne  Trial) 
I,  813  (semble) ;  People  v.  Swineford,  77  Mich.  573. 

The  willful  introduction  by  a  party  of  false  testimony  is  not  an 
admission  of  the  truth  of  testimony  of  his  adversary's  witnesses  to 
the  contrary.  Boyd  v.  State,  16  Lea  (Tenn.)  149. 

2»7  Askew  v.  Odenheimer,  Baldw.  380,  389,  Fed.  Cas.  No.  587;  Con- 
nell  v.  McLoughlin,  28  Or.  230;  McReynolds  v.  McCord,  6  Watts  (Pa.) 
288.  Contra,  Dalston  v.  Coatsworth,  1  P.  Wms.  731;  Bush  v.  Guion, 
6  La.  Ann.  797;  Pomeroy  v.  Benton,  77  Mo.  64. 

2»8  Harden  v.  Hesketh,  4  Hurl.  &  N.  175;  Rector  v.  Rector,  8  111.  105; 
Bott  v.  Wood,  56  Miss.  136;  Jones  v.  Knauss,  31  N.  J.  Eq.  609;  Con- 
nell  v.  McLoughlin,  28  Or.  230,  237  (semble);  Frick  v.  Barbour,  64 
Pa.  120. 

Withholding  of  a  document  aids  evidence  of  its  execution,  as  well 
as  evidence  of  its  contents.  Benjamin  v.  Ellinger's  Adm'r,  80  Ky.  472; 
In  re  Lambie's  Estate,  97  Mich.  49. 

.  2»o  Hanson  v.  Eustace's  Lessee,  2  How.  (U.  S.)  653,  708  (semble); 
Thayer  v.  Middlesex  Mut.  F.  Ins.  Co.,  10  Pick.  (Mass.)  325,  328  (sem- 


170  LAW    OF   EVIDENCE.  §   42b 

ered  by  the  jury  in  weighing  the  nonproducing  party's  testi- 
mony concerning  the  matter  to  which  the  document  relates.3*" 
Other  than  this,  the  refusal  to  produce  a  document  upon  notice 
gives  rise  to  no  inference  against  the  party  so  refusing.301  The 
only  effect  of  his  recalcitrancy  is  to  make  secondary  evidence 
of  its  contents  competent.  It  does  not  dispense  with  the  ne- 
cessity of  secondary  evidence ;  it  operates  simply  in  aid  of  such 
evidence.302- 303 

(b)  Attempt  to  fabricate,  spoliate,  or  suppress  evidence. 
An  unsuccessful  attempt  to  spoliate  or  suppress  evidence 
must  be  distinguished  from  the  actual  accomplishment  of  that 
end.  If  the  attempt  is  unsuccessful,  it  can  give  rise  to  no 
inference  concerning  the  substance  of  the  evidence  to  which 
the  attempt  was  directed,  because,  the  attempt  having  failed, 
that  evidence  is  before  the  jury,  and  speaks  for  itself.304  Thus, 
an  unsuccessful  attempt  to  spoliate  or  suppress  an  article  of 
real  evidence  or  a  document  can  afford  no  inference  either  as 

ble);  Cross  v.  Bell,  34  N.  H.  82;  L.  &  F.  Ins.  Co.  v.  Mechanic  F.  Ins. 
Co.,  7  Wend.  (N.  Y.)  31;  Cahen  v.  Continental  L.  Ins.  Co.,  69  N.  Y. 
300;  Schreyer  v.  Turner  Flouring  Mills  Co.,  29  Or.  1.  See  Wishart  v. 
Downey,  15  Serg.  &  R.  (Pa.)  77. 

soo  Davie  v.  Jones,  68  Me.  393. 

301  Cooper  v.  Gibbons,  3  Camp.  363;  Lawson  v.  Sherwood,  1  Starkie, 
314,  2  E.  C.  L.  124;  Hanson  v.  Eustace's  Lessee,  2  How.  (U.  S.)  653; 
Cartier  v.  Troy  Lumber  Co.,  138  111.  533,  14  L.  R.  A.  470;  Hunt  v. 
Collins,  4  Iowa,  56  (semble);  Spring  Garden  Mut.  Ins.  Co.  v.  Evans, 
9  Md.  1,  66  A.  D.  308.  Contra,  Tobin  v.  Shaw,  45  Me.  331,  71  A.  D.  547. 

This  is  true,  at  least  where  the  document  withheld  would  not  be 
admissible  in  behalf  of  the  party  failing  to  produce  it,  even  though 
the  other  party  has  notified  him  to  produce  it.  Merwin  v.  Ward,  15 
Conn.  377. 

302,  303  Hanson  v.  Eustace's  Lessee,  2  How.  (U.  S.)  653;  Spring  Gar- 
den Mut.  Ins.  Co.  v.  Evans,  9  Md.  1,  66  A.  D.  308;  L.  &  F.  Ins.  Co.  v.  Me- 
chanic F.  Ins.  Co.,  7  Wend.  (N.  Y.)  31. 

so*  "When  the  proofs  are  produced,  the  presumption  is  gone."  Brown 
v.  Mitchell,  102  N.  C.  347,  11  A.  S.  R.  748,  754.  And  see  note  282,  supra. 


§  43  FRAUD.  !71 

to  the  nature  or  condition  of  that  article,  nor  as  to  the  con- 
tents of  the  document,  since,  by  reason  of  the  failure  of  the 
attempt,  the  article  or  the  document  is  available  to  the  adverse 
party,  and  itself  constitutes  the  best  evidence  of  its  nature, 
condition,  and  contents.  The  same  rule  applies  to  the  testi- 
mony of  a  witness  whose  testimony  there  has  been  an  attempt 
to  fabricate  or  suppress.  The  attempt  having  failed,  there 
can  be  no  doubt  as  to  the  substance  or  force  of  that  testimony, 
and  there  is  no  room  for  any  inference  as  to  whether  it 
prejudices  the  case  of  the  party  attempting  to  fabricate  or  sup- 
press it. 

While  all  this  is  true,  yet  the  fact  that  a  party  attempts  to 
spoliate  or  suppress  evidence,  even  though  he  fails  of  that 
end,  is  allowed  to  go  to  the  jury,  to  be  considered  by  them  in 
connection  with  all  the  evidence,  not  as  bearing  on  the  sub- 
stance of  the  evidence  sought  to  be  spoliated  or  suppressed, 
but  seemingly  as  an  implied  admission  of  the  party  bearing 
generally  on  the  justice  of  his  case;305  and  attempted  fabri- 
cation of  evidence  may  be  considered  to  the  same  end.306 

G.  FRAUD,  DURESS,  AND  UNDUE  INFLUENCE. 

§  43.    Fraud. 

The  presumption  of  innocence  applies  in  cases  where  actual 
fraud  is  the  issue.  In  other  words,  actual  fraud  is  not  pre- 
sumed, and  the  burden  of  establishing  it  is  upon  the  party 
who  alleges  it.307  .This  is  a  principle  of  frequent  application, 
and  a  few  illustrations  may  be  given. 

«o5Lockwood  v.  Rose,  125  Ind.  588;  Com.  v.  Webster,  5  Cush.  (Mass.) 
295,  52  A.  D.  711;  Com.  v.  Sullivan,  156  Mass.  487;  Com.  v.  Locke, 
145  Mass.  401;  Com.  v.  Daily,  133  Mass.  577;  Com.  v.  Wallace,  123  Mass. 
400;  Com.  v.  Hall,  4  Allen  (Mass.)  305;  State  v.  Dickson,  78  Mo.  438. 
And  see  page  160,  supra. 
.  »oe  See  pages  159,  160,  supra. 

ao?  London  Chartered  Bank  v.  Lempriere,  L.  R.  4  P.  C.  572;   Greggr 


172  LAW   OF   EVIDENCE.  §  43 

If,  in  an  action  on  contract,  the  defendant  would  avoid  lia- 
bility because  the  contract  was  induced  by  fraud,  he  has  the 
burden  of  establishing  that  defense.308 

v.  Sayre's  Lessee,  8  Pet.  (U.  S.)  244;  Hager  v.  Thomson,  1  Black  (U. 
S.)  80;  Smith  v.  Yule,  31  Cal.  180,  89  A.  D.  167;  McCarthy  v.  White, 
21  Cal.  495,  82  A.  D.  754;  Stewart  v.  Preston,  1  Fla.  10,  44  A.  D.  621; 
O'Neal  v.  Boone,  82  111.  589;  Greenwood  v.  Lowe,  7  La.  Ann.  197;  Man- 
dal  v.  Mandal's  Heirs,  28  La.  Ann.  556;  Nichols  v.  Patten,  18  Me.  231, 
36  A.  D.  713;  New  Portland  v.  Kingfield,  55  Me.  172;  Cannon  v.  Brush 
Elec.  Co.,  96  Md.  446,  94  A.  S.  R.  584;  Hill  v.  Reif snider,  46  Md.  555; 
Hunt  v.  Chosen  Friends,  64  Mich.  671,  8  A.  S.  R.  855;  Och  v.  Mo.,  K. 
&  T.  R.  Co.,  130  Mo.  27,  36  L.  R.  A.  442;  Smith  v.  Ogilvie,  127  N.  Y. 
143;  Hewlett  v.  Hewlett,  4  Edw.  Ch.  (N.  Y.)  7;  Caswell  v.  Jones,  65 
Vt.  457,  36  A.  S.  R.  879;  7  Current  Law,  1823. 

This  presumption  is  expressed  in  the  maxim,  Odiosa  et  inhonesta 
non  sunt  in  lege  praesumanda. 

The  presumption  applies  in  favor  of  a  will.  Davis  v.  Calvert,  5  Gill 
&  J.  (Md.)  269,  25  A.  D.  282;  King  v.  King,  19  Ky.  L.  R.  868,  42  S.  W. 
347. 

The  presumption  of  innocence  does  not  apply  to  transactions  con- 
structively fraudulent.  In  these  the  question  of  good  faith  is  imma- 
terial. Regardless  of  that,  the  law  attaches  to  the  transaction  the 
same  consequences  as  those  which  follow  actual  fraud.  The  discus- 
sion in  the  text  has  reference  to  actual  fraud  only.  Constructive  fraud 
is  fully  discussed  in  2  Pom.  Eq.  Jur.  §§  922-974. 

The  presumption  of  innocence  of  fraud  should  be  distinguished  from 
the  presumptions  of  legality  and  of  regularity,  respectively,  which  are 
considered  in  §§  23-30,  supra,  and  §§  55-58,  infra. 

sos  ROSS  v.  Hunter,  4  Term  R.  33,  38;  Elkin  v.  Janson,  13  Mees.  & 
W.  655;  Penn  Mut.  L.  Ins.  Co.  v.  Mechanics'  S.  B.  &  T.  Co.,  37  U.  S. 
App.  692,  43  U.  S.  App.  75,  38  L.  R.  A.  33;  Tidmarsh  v.  Wash.  F.  & 
M.  Ins.  Co.,  4  Mason,  439,  Fed.  Cas.  No.  14,024;  Juzan  v.  Toulmin,  9 
Ala.  662,  44  A.  D.  448;  Towsey  v.  Shook,  3  Blackf.  (Ind.)  267,  25  A. 
D.  108;  Oaks  v.  Harrison,  24  Iowa,  179;  Adams  Exp.  Co.  v.  Guthrie, 
9  Bush  (Ky.)  78;  Price  v.  Gover,  40  Md.  102;  Beatty  v.  Fishel,  100 
Mass.  448;  Campbell  v.  N.  E.  Mut.  L.  Ins.  Co.,  98  Mass.  381;  Briggs 
v.  Humphrey,  5  Allen  (Mass.)  314;  Fiske  v.  N.  E.  Marine  Ins.  Co.,  15 
Pick.  (Mass.)  310;  Kline  v.  Baker,  106  Mass.  61;  Feldman  v.  Gamble. 
26  N.  J.  Eq.  494;  Fivey  v.  Pa.  R.  Co.,  67  N.  J.  Law,  627,  91  A.  S.  R. 
445;  Seymour  v.  Spring  Forest  Gem.  Ass'n,  144  N.  Y.  333,  26. L.  R.  A. 
£59;  N.  Y.  L.  Ins.  Co.  v.  Davis,  96  Va.  737,  44  L.  R.  A.  305. 


§  43  FRAUD.  173 

In  an  action  to  set  aside  a  conveyance  as  in  fraud  of  cred- 
itors, the  burden  of  proving  fraud  rests  on  the  plaintiff;309 
and  having  shown  a  fraudulent  intent  on  the  part  of  the 
debtor,  the  plaintiff  must  in  most  states  also  show  that  the 
transferee  was  aware  of  it.310  If  the  conveyance  was  made 
to  the  debtor's  wife,  however,  the  presumption  of  innocence 
does  not  arise,  and  the  wife  has  the  burden  of  showing  that 
the  transfer  was  made  in  good  faith.311 

The  fact  that  a  man  is  indebted,  and  that  he  makes  a 
transfer  of  property  without  a  valuable  consideration,  does 
not  conclusively  establish  fraud  as  to  his  creditors.312  Its 

309  Jones  v.  Simpson,  116  U.  S.  609;  Thames  v.  Rembert's  Adm'r,  63 
Ala.  561;   Tompkins  v.  Nichols,  53  Ala.  197;   Hempstead  v.  Johnston, 
18  Ark.  123,  65  A.  D.  458;   Excelsior  Mfg.  Co.  v.  Owens,  58  Ark.  556; 
Marsh  v.  Cramer,  16  Colo.  331;  Bowden  v.  Bowden,  75  111.  143;  Wallace 
v.  Mattice,   118   Ind.   59;    Baudin    v.  Roliff,   1   Mart.   N.   S.    (La.)    165, 

14  A.  D.  181;   Bartlett  v.  Blake,  37  Me.  124,  58  A.  D.  775;   Hatch  v. 
Bayley,  12  Gush.   (Mass.)  27;  Bernheimer  v.  Rindskopf,  116  N.  Y.  428, 

15  A.  S.  R.  414;   Sabin  v.  Columbia  Fuel  Co.,  25  Or.  15,  42  A.  S.  R. 
756;   Floyd  v.  Goodwin,  8  Yerg.    (Tenn.)   484,  29  A.  D.  130;    Tillman 
v.  Heller,  78  Tex.  597,  22  A.  S.  R.  77;  Jackson  v.  Harby,  70  Tex.  410; 
Williams  v.   Lord,   75  Va.   390;    Butler  v.  Thompson,  45  W.  Va.   660, 
72  A.  S.  R.  838;  Mayers  v.  Kaiser,  85  Wis.  382,  21  L.  R.  A.  623. 

The  same  burden  rests  on  a  creditor  who  opposes  an  insolvent's  dis- 
charge. In  re  Harris,  81  Cal.  350.  However,  a  transfer  by  a  debtor 
to  one  of  his  creditors,  out  of  the  ordinary  course  of  business,  is  prima 
facie  fraudulent.  Godfrey  v.  Miller,  80  Cal.  420. 

310  Simmons  v.  Shelton,  112  Ala.  284,  57  A.  S.  R.  39;   Smith  v.  Jen- 
sen, 13  Colo.  213;   Baudin  v.  Roliff,  1  Mart.  N.  S.  (La.)   165,  14  A.  D. 
181  (semble);  Tuteur  v.  Chase,  66  Miss.  476,  14  A.  S.  R.  577  (semble); 
Van  Raalte  v.  Harrington,  101  Mo.  602,  20  A.  S.  R.  626;   Edwards  v. 
Reid,  39  Neb.  645,  42  A.   S.  R.  607    (semble);    Tillman  v.   Heller,  78 
Tex.  597,  22  A.  S.  R.  77;    Paul  v.  Baugh,  85  Va.  955,  958    (semble). 
Contra,  Richards  v.  Vaccaro,  67  Miss.  516,  19  A.  S.  R.  322;   Weber  v. 
Rothchild,  15  Or.  385,  3  A.  S.  R.  162. 

311  Carson  v.  Stevens,  40  Neb.  112,  42  A.  S.  R.  661;   Stevens  v.  Car- 
son, 30  Neb.  544,  9  L.  R.  A.  523. 

si2Driggs  &  Co.'s  Bank  v.  Norwood,  50  Ark.  42,  7  A.  S.  .R.  78; 
Warner  v.  Dove,  33  Md.  579;  Lerow  v.  Wilmarth,  9  Allen  (Mass.) 


174  LAW   OF  EVIDENCE.  §  43 

effect,  and  its  sole  effect,  is  to  constitute  a  prima  facie  case 
of  fraud  which  may  'be  rebutted  by  evidence  that  he  retained 
means  ample  to  satisfy  his  existing  obligations,  and  readily 
accessible  to  his  creditors.313  If  this  is  not  shown,  the  con- 
veyance is  void  as  to  existing  creditors,  even  though  the  debtor 
acted  in  good  faith.314  In  regard  to  subsequent  creditors,  the 
rule  is  different.  These  cannot  set  aside  a  voluntary  convey- 
ance, even  though  it  comprehends  all  the  debtor's  available 
property,  unless  he  made  the  transfer  for  the  purpose  of  de- 
frauding creditors,315  and  the  burden  'of  proving  this  intent  lies 
on  them.316 

382;  Wilson  v.  Kohlheim,  46  Miss.  346;  Arnett  v.  Wanett,  28  N.  C. 
(6  Ired.)  41.  Contra,  Wooten  v.  Steele,  109  Ala.  563,  55  A.  S.  R. 
947;  Severs  v.  Dodson,  53  N.  J.  Eq.  633,  51  A.  S.  R.  641;  Annin  v. 
Annin,  24  N.  J.  Eq.  184. 

The  rule  is  declared  by  statute  in  some  states.  Pence  v.  Groan, 
51  Ind.  336;  Holden  v.  Burnham,  63  N.  Y.  74. 

313  Pratt  v.  Curtis,  2  Lowell,  87,  90,  Fed.  Gas.  No.  11,375;   Emerson 
v.  Bemis,  69  111.  537;  Chase  v.  McCay,  21  La.  Ann.  195;  Ames  v.  Dor- 
roh,  76  Miss.  187,  71  A.  S.  R.  522;    Gove  v.  Campbell,  62  N.  H.  401; 
Brice   v.   Myers,   5   Ohio,   121;    Richardson   v.   Rhodus,   14   Rich.   Law 
(S.  C.)   95. 

The  burden  of  showing  that  ample  means  were  retained  does  not 
rest  on  the  debtor,  under  the  statutes  of  Indiana.  Pence  v.  Groan, 
51  Ind.  336. 

314  Gove  v.  Campbell,  62  N.  H.  401;   Cole  v.  Tyler,  65  N.  Y.  73,  78; 
Taylor  v.  Miles,  19  Or.  550;   Clark  v.  Depew,  25  Pa.  509. 

Accordingly,  if  it  appears  that  the  debtor  was  insolvent  or  embar- 
rassed when  he  made  the  conveyance,  it  is  void.  Rudy  v.  Austin,  56 
Ark.  73,  35  A.  S.  R.  85;  Driggs  &  Co.'s  Bank  v.  Norwood,  50  Ark.  42,  7 
A.  S.  R.  78;  Lowry  v.  Fisher,  2  Bush  (Ky.)  70,  92  A.  D.  475;  Potter  v. 
McDowell,  31  Mo.  62. 

3isMattingly  v.  Nye,  8  Wall.  (U.  S.)  370;  Schreyer  v.  Scott,  134 
LT.  S.  405;  Rudy  v.  Austin,  56  Ark.  73,  35  A.  S.  R.  85;  Pratt  v. 
Myers,  56  111.  23;  Lloyd  v.  Bunce,  41  Iowa,  660;  Place  v.  Rhem,  7 
Bush  (Ky.)  585;  Richardson  v.  Rhodus,  14  Rich.  Law  (S.  C.)  95; 
Nicholas  v.  Ward,  1  Head  (Tenn.)  323;  Lockhard  v.  Beckley,  10 
W.  Va.  37. 

SIB  Seals  v.  Robinson,  75  Ala.  363;  Hagerman  v.  Buchanan,  45  N. 
J.  Eq.  292,  14  A.  S.  R.  732;  Crawford  v.  Beard,  12  Or.  447. 


<?  43  FRAUD.  !75 

If  a  transfer  is  attacked  as  voluntary,  the  burden  of  ad- 
ducing evidence  that  it  was  based  upon  a  valuable  and  ade- 
quate consideration  rests  on  the  transferee;317  and  this  is 
especially  true  where  the  transfer  was  made  to  the  debtor's 
wife.318  Where  stock  has  been  paid  for  by  a  conveyance  of 
property  to  the  corporation,  or  by  performance  of  services, 
however,  and  there  is  no  evidence  as  to  the  value  of  the  prop- 
erty or  services,  the  presumption  is  that  it  was  adequate; 
and  even  where  it  appears  that  there  was  in  fact  overvalua- 
tion, yet,  if  the  overvaluation  was  not  so  gross  and  palpable 
as  to  show  that  it  must  have  been  intentional,  it  will  be  pre- 
sumed that  the  valuation  was  honestly  made.818 

sirwooten  v.  Steele,  109  Ala.  563,  55.  A.  S.  R.  947;  Roswald  v.  Hob- 
ble, 85  Ala.  73,  7  A.  S.  R.  23;  Mobile  Sav.  Bank  v.  McDonnell,  89 
Ala.  434,  18  A.  S.  R.  137;  Thorington  v.  Montgomery  City  Council, 
88  Ala.  548;  Kipp  v.  Lamoreaux,  81  Mich.  299;  Richards  v.  Vaccaro, 
67  Miss.  516,  19  A.  S.  R.  322;  Weber  v.  Rothchild,  15  Or.  385,  3  A. 
S.  R.  162;  Kaine  v.  Weigley,  22  Pa.  179;  Tillman  v.  Heller,  78  Tex. 
597,  22  A.  S.  R.  77;  Butler  v.  Thompson,  45  W.  Va.  660,  72  A.  S.  R. 
838. 

If  an  innocent  purchaser  of  goods  sold  in  fraud  of  creditors  gives 
a  note  for  the  price,  he  is  not  protected  unless  the  note  is  negotiable, 
and  the  burden  of  proof  is  on  him  to  show  its  negotiability.  Till- 
man v.  Heller,  78  Tex.  597,  22  A.  S.  R.  77. 

In  the  case  of  a  mortgage  or  trust  deed  the  transferee  makes  a 
prima  facie  case  of  consideration  by  producing  the  securities  recited 
In  the  deed.  Hempstead  v.  Johnston,  18  Ark.  123,  65  A.  D.  458.  A 
recital  of  consideration  in  the  deed  does  not  make  a  prima  facie  case 
against  the  attacking  creditor,  however.  Butler  v.  Thompson,  45 
W.  Va.  660,  72  A.  S.'  R.  838. 

sis  Rush  v.  Landers,  107  La.  549,  57  L.  R.  A.  353;  Hodges  v.  Hickey, 
67  Miss.  715;  Adoue  v.  Spencer,  62  N.  J.  Eq.  782,  90  A.  S.  R.  484; 
Brown  v.  Mitchell,  102  N.  C.  347,  11  A.  S.  R.  748,  752;  Burt  v.  Tim- 
mons,  29  W.  Va.  441,  6  A.  S.  R.  664. 

It  is  otherwise  by  statute  in  California.  Poulson  v.  Stanley,  122 
Cal.  655,  68  A.  S.  R.  73. 

sis  1  Clark  &  M.  Priv.  Corp.  §  392 ;  Davis  v.  Montgomery  F.  &  C. 
Co.,  101  Ala.  127;  American  T.  &  I.  Co.  v.  Baden  Gas  Co.,  165  Pa. 
489;  Shields  v.  Clifton  Hill  Land  Co.,  94  Tenn.  123,  45  A.  S.  R.  700. 


J76  LAW   OF   EVIDENCE.  §   43 

The  onJy  effect  of  the  presumption  of  innocence  is  upon  the 
burden  of  proof.  It  does  not  require  that  fraud  shall  be  es- 
tablished, if  at  all,  by  direct  evidence.  In  the  nature  of  the 
case,  the  most  common  means  of  proving  it  is  circumstantial 
evidence,  and  this  means  is  sanctioned  by  law.320 

320  UNITED  STATES:     Rea  v.  Mo.,  17  Wall.  532,  543. 

ALABAMA:      Thames  v.  Rembert's  Adm'r,  63  Ala.   561. 

CALIFORNIA:     McDaniel  v.  Baca,  2  Cal.  326,  56  A.  D.  339. 

COLORADO:      Marsh  v.   Cramer,  16  Colo.   331. 

CONNECTICUT:     Morford  v.  Peck,  46  Conn.  380. 

ILLINOIS:  Reed  v.  Noxon,  48  111.  323;  Bowden  v.  Bowden,  75  111. 
143. 

INDIANA:     De  Ruiter  v.  De  Ruiter,  28  Ind.  App.  9,  91  A.  S.  R.  107. 

IOWA:     Turner  v.  Younker,  76  Iowa,  258. 

KENTUCKY:     Lowry  v.  Beckner,  5  B.  Mon.  41,  43. 

MICHIGAN:  O'Donnell  v.  Segar,  25  Mich.  367;  Webber  v.  Jackson, 
79  Mich.  175,  19  A.  S.  R.  165. 

MISSISSIPPI:     White  v.  Trotter,  14  Smedes  &  M.   30,  53  A.  D.  112. 

MISSOURI:  Van  Raalte  v.  Harrington,  101  Mo.  602,  20  A.  S.  R. 
626. 

NEVADA:     Tognini  v.  Kyle,  15  Nev.  464. 

NEW  YORK:     Booth  v.  Bunce,  33  N.  Y.  139,  88  A.  D.  372. 

NORTH  CAROLINA:     Brown  v.  Mitchell,  102  N.  C.  347,  11  A.  S.  R.  748. 

OREGON:     Lyons  v.  Leahy,  15  Or.  8,  3  A.  S.  R.  133. 

PENNSYLVANIA:  Kaine  v.  Weigley,  22  Pa.  179;  McMichael  v.  Mc- 
Dermott,  17  Pa.  353,  55  A.  D.  560. 

TENNESSEE:     Floyd  v.  Goodwin,  8  Yerg.   (Tenn.)   484,  29  A.  D.  130. 

TEXAS:  Linn  v.  Wright,  18  Tex.  317,  70  A.  D.  282;  Briscoe  v. 
Bronaugh,  1  Tex.  326,  46  A.  D.  108;  Schmick  v.  Noel,  72  Tex.  1; 
Burch  v.  Smith,  15  Tex.  219,  65  A.  D.  154. 

"It  is  said  that  fraud  must  be  proved,  and  is  never  to  be  pre- 
sumed. This  proposition  can  be  admitted  only  in  a  qualified  and  very 
limited  sense.  But  it  is  often  urged  at  the  bar,  and  sometimes  as- 
sented to  by  judges,  as  if  it  were  a  fundamental  maxim  of  the  law, 
universally  true,  incapable  of  modification,  and  open  to  no  exception; 
whereas  it  has  scarcely  extent  enough  to  give  it  the  dignity  of  a 
general  rule,  and,  so  far  as  it  does  go,  it  is  based  on  a  principle  which 
has  no  more  application  to  frauds  than  to  any  other  subject  of  ju- 
dicial inquiry.  It  amounts  but  to  this:  that  a  contract  honest  and 
lawful  on  its  face  must  be  treated  as  such  until  it  is  shown  to  be 
otherwise  by  evidence  of  some  kind,  either  positive  or  circumstan- 


§  45a  DURESS.  177 

§  44.    Duress. 

The  presumption  of  innocence  applies  in  cases  where  duress 
is  interposed  as  a  defense  in  an  'action  on  contract.  The  bur- 
den of  proof,  therefore,  rests  on  the  defendant,  and  he  must 
establish  the  coercion.821 

§  45.    Undue  influence. 

(a)  Contracts  and  conveyances.  Ordinarily  the  burden  of 
proving  undue  influence  as  a  ground  for  avoiding  a  contract 
or  conveyance  is  on  the  party  who  asserts  it.322  The  circum- 
stances are  often  such  as  to  raise  a  presumption  of  undue 
influence,  however,  in  which  event  the  burden  of  adducing 

tial.  It  is  not  true  that  fraud  can  never  be  presumed.  Presumptions 
are  of  two  kinds,  legal  and  natural.  Allegations  of  fraud  are  some- 
times supported  by  one,  and  sometimes  «by  the  other,  and  are  sel- 
dom— almost  never — sustained  by  that  direct  and  plenary  proof 
which  excludes  all  presumption.  A  sale  of  chattels  without  delivery 
or  a  conveyance  of  land  without  consideration  is  conclusively  pre- 
sumed to  be  fraudulent  as  against  creditors,  not  only  without  proof 
of  any  dishonest  intent,  but  in  opposition  to  the  most  convincing  evi- 
dence that  the  motives  and  objects  of  the  parties  were  fair.  Thi8 
is  an  example  of  fraud  established  by  mere  presumption  of  law.  A 
natural  presumption  is  the  deduction  of  one  fact  from  another.  For 
instance,  a  person  deeply  indebted,  and  on  the  eve  of  bankruptcy, 
makes  over  his  property  to  a  near  relative,  who  is  known  not  to 
have  the  means'  of  paying  for  it.  From  these  facts  a  jury  may  infer 
the  fact  of  a  fraudulent  intent  to  hinder  and  delay  creditors.  A  pre- 
sumption of  fraud  is .  thus  created  which  the  party  who  denies  it 
must  repel  by  clear  evidence,  or  else  stand  convicted."  Per  Black, 
C.  J.,  in  Kaine  v.  Weigley,  22  Pa.  179,  183. 

821  Schwartz  v.  Schwartz,  29  111.  App.  516;  Lowis  v.  Conrad  Selpp 
Brew.  Co.,  63  111.  App.  345,  350;  Stanley  v.  Dunn,  143  Ind.  495;  Adams 
Exp.  Co.  v.  Guthrie,  9  Bush  (Ky.)  78;  Feller  v.  Green,  26  Mich.  70; 
Sternback  v.  Friedman,  23  Misc.  (N.  Y.)  173;  Pflaum  v.  McClintock, 
130  Pa.  369;  Wilkerson  v.  Bishop,  7  Cold.  (Tenn.)  24;  Spaulding  v. 
Crawford,  27  Tex.  155. 

322  Mallow  v.  Walker,  115   Iowa,  238,  91  A.  S.  R.  158. 

Hammon,  Ev. — 12. 


178  LAW   OP  EVIDENCE.  §  45a 

evidence  of  good  faith  and  fair  dealing  is  cast  on  the  party 
against  whom  the  charge  is  made.823 

Relationship  of  the  parties.  The  most  important  in- 
stance of  the  presumption  of  undue  influence  is  that  arising 
from  the  peculiar  relation  in  which  the  parties  stood  with 
reference  to  each  other  at  the  time  of  the  transaction  in  suit. 
One  class  of  circumstances  calculated  to  raise  this  presump- 
tion appears  to  be  that  the  party  benefited  stood  in  some  such 
relation  to  the  complaining  party  as  to  render  him  peculiarly 
subject  to  influence.324  And  if  it  is  once  established  that  a 
person  who  stood  in  a  position  of  commanding  influence  to- 
wards another  obtained  an  advantage  from  him  while  in  that 
position,  it  will  be  presumed,  in  the  absence  of  rebutting  evi- 
dence, that  the  advantage  was  obtained  by  means  of  that  in- 
fluence; and  it  is  not  necessary  for  the  party  complaining  to 
show  the  precise  manner  in  which  the  influence  was  exerted, 
— given  a  position  of  general  and  habitual  influence,  its  ex- 
ercise in  the  particular  case  is  presumed.325  There  are  many 
relations  from  which  the  court  will  presume  undue  influence, 
but  equity  has  refused  to  commit  itself  to  a  definite  enumera- 
tion of  them.  The  cases  in  which  relief  has  been  granted,  the 
more  important  of  which  will  now  be  considered  in  detail,  are 
regarded  merely  as  instances  of  the  application  of  a  principle 
applying  to  all  the  variety  of  relations  in  which  dominion 
may  be  exercised  by  one  person  over  another.329 

323  The  subject  of  undue  influence,  together  with  the  presumptions 
concerning   it,    such   as   those   arising   from   inadequacy   of   consider- 
ation, relationship  of  the  parties,  mental  and  moral  weakness,  ignor- 
ance,  improvidence,   and   distress,   are   considered   in   Hammon,   Cont. 
§§  138-145.     As  to  drunkenness,  see  Id.  §  183. 

324  Hammon,  Cont.  §  142;  Smith  v.  Kay,  7  H.  L.  Gas.  750,  779;  Green 
v.  Roworth,  113  N.  Y.  462. 

325  Hammon,   Cont.   §   142;    Woodbury  v.  Woodbury,   141  Mass.   329, 
55  A.   R.   479. 

326  Smith  v.  Kay,  7  H.  L.  Cas.  750,  779;   Huguenin  v.  Baseley,  14 


§  45a  UNDUE    INFLUENCE.  179 

(1)  Family  relation.    Where  the  contracting  parties  are 

members  of  the  same  family,  so  that  one  exercises  a  substan- 
tial preponderance  in  the  family  councils,  either  from  age, 
character,  or  other  circumstance,  a  presumption  arises  that 
the  one  exercised  undue  influence  over  the  other  in  order 
to  obtain  the  benefits  he  has  received  under  the  contract,  and 
the  burden  is  cast  upon  the  former  to  show  that  the  transac- 
tion was  fair  and  free.327  This  rule  is  most  often  illustrated 
in  the  case  of  contracts  between  parent  and  child,828  or  guard- 
ian and  ward,829  or  between  persons  occupying  relations  in 
which  there  is  a  power  analogous  to  that  of  parent  or  guard- 
ian.330 While  a  court  of  equity  will  not  interfere  to  pre- 

Ves.  273,  285;  Shipman  v.  Furniss,  69  Ala.  555,  564,  44  A.  R.  528; 
Todd  v.  Grove,  33  Md.  188,  194;  McClure  v.  Lewis,  72  Mo.  314;  Hay- 
dock  v.  Haydock's  Ex'rs,  34  N.  J.  Eq.  570,  574,  38  A.  R.  385;  Cowee 
v.  Cornell,  75  N.  Y.  91,  101,  31  A.  R.  428;  Beaton  v.  Munroe,  57  N.  C. 
(4  Jones  Eq.)  39,  41;  Long  v.  Mulford,  17  Ohio  St.  484,  504,  93  A.  D. 
638;  Bayliss  v.  Williams,  6  Cold.  (Tenn.)  440,  442;  Varner  v.  Carson, 
59  Tex.  303,  307. 

327  sisters.  Harvey  v.  Mount,  8  Beav.  439;  Watkins  v.  Brant,  46 
Wis.  419. 

Brother  and  sister.  Million  v.  Taylor,  38  Ark.  428;  Thornton  v. 
Ogden,  32  N.  J.  Eq.  723;  Sears  v.  Shafer,  6  N.  Y.  268.  See  Odell  v. 
Moss,  130  Cal.  352. 

Uncle  and  nephew.  Hall  v.  Perkins,  3  Wend.  (N.  Y.)  626;  Graham 
v.  Little,  56  N.  C.  (3  Jones  Eq.)  152. 

Nephew  and  aunt.     Cooke  v.  Lamotte,  15  Beav.  234. 

828  Turner  v.  Collins,  7  Ch.  App.  329;   Jenkins  v.  Pye,  12  Pet.    (U. 
S.)    241;    Sayles   v.  •  'Christie,   187   111.   420;    Williams   v.  Williams,   63 
Md.   371;    Ashton  v.  Thompson,   32  Minn.   25;    Miller  v.   Simonds,   72 
Mo.  669;   Wood  v.  Rabe,  96  N.  Y.  414,  48  A.  R.  640;  Miskey's  Appeal, 
107  Pa.  611.     See,  however,  Teegarden  v.  Lewis,  145  Ind.  98. 

829  Hatch  v.  Hatch,  9  Ves.  292;   Malone  v.  Kelley,  54  Ala.  532;   Me- 
Parland   v.   Larkin,   155    111.   84;    Ashton   v.   Thompson,   32   Minn.   25; 
Meek  v.  Perry,  36  Miss.  190;  Wade  v.  Pulsifer,  54  Vt.  45. 

sac  Highberger   v.    Stiffler,    21    Md.    338,    83   A.    D.    593;    Berkmeyer 
y.  Kellerman,  32  Ohio  St.  239,  30  A.  R.  577. 
Stepfather  and  stepchild.     Bradshaw  v.  Yates,  67  Mo.  221. 


ISO  LAW   OF  EVIDENCE. 

vent  an  act  even  of  bounty  between  parent  and  child,  or 
persons  standing  in  a  like  relation,331  yet  it  will  take  care 
that  the  child  is  placed  in  such  a  position  as  will  enable  it 
to  form  an  entirely  free  and  unfettered  judgment,  independ- 
ent of  any  sort  of  control.332 

The  presumption  of  undue  influence  may  arise,  not  only  in 
favor  of  the  child,  but  as  well  in  favor  of  the  parent,  where, 
from  age,  sickness,  or  other  cause,  he  is  placed  under  the  domi- 
nation of  the  child.333  The  relation  of  husband  and  wife  has 
been  held  to  create  a  presumption  of  undue  influence  upon  the 
part  of  the  man;334  and  the  like  has  been  held  as  to  persons 
engaged  to  be  married,335  and  also  as  to  persons  living  together 
as  man  and  wife.336  The  presumption  may  arise  in  favor  of 
the  man,  as  well  as  the  woman.337 

Grandparent  and  grandchild.    Brown  v.  Burbank,  64  Cal.  99. 
Uncle  and  niece.    Archer  v.  Hudson,  7  Beav.  551. 
Position  analogous  to  guardianship.     Hemphill  v.  Holford,  88  Mich. 
293. 

331  Archer  v.  Hudson,  7  Beav.  551,  560;   Jenkins  v.  Pye,  12  Pet.   (U. 
S.)    241. 

332  Archer  v.   Hudson,  7  Beav.  551,  560. 

333  Highberger  v.   Stiffler,   21  Md.   338,   83  A.   D.   593;    Buncombe  v. 
Richards,   46    Mich.    166;    Bowe   v.   Bowe,   42    Mich.    195;    Graham   v. 
Burch,   44   Minn.   33;    McClure   v.   Lewis,   72   Mo.    314;    Green   v.   Ro- 
worth,   113   N.   Y.   462;    Smith   v.   Loaf  man,   145   Pa.   628;    Graves   v. 
White,  4  Baxt.  (Tenn.)  38.    See  Cooke  v.  Lamotte,  15  Beav.  234;  Grif- 
fiths v.  Robins,  3  Madd.  191;  Lanfair  v.  Thompson,  112  Ga.  487;  Oard 
v.  Oard,  59  111.  46.     See,  however,  Teegarden  v.  Lewis,  145  Ind.  98. 

334Qolding  v.  Golding,  82  Ky.  51;  Stiles  v.  Stiles,  14  Mich.  72; 
Darlington's  Appeal,  86  Pa.  512,  27  A.  R.  726.  Contra,  Grigby  v. 
Cox,  1  Ves.  Sr.  517;  Nedby  v.  Nedby,  5  De  Gex  &  S.  377;  Hardy  v. 
Van  Harlingen,  7  Ohio  St.  208;  Earle  v.  Chace,  12  R.  I.  374. 

335  Cobbett  v.  Brock,  20  Beav.  524;  Page  v.  Home,  11  Beav.  227; 
Rockafellow  v.  Newcomb,  57  111.  186;  Pierce  v.  Pierce,  71  N.  Y.  154, 
27  A.  R.  22;  Shea's  Appeal,  121  Pa.  302,  1  L.  R.  A.  422.  And  see  Kline 
v.  Kline,  57  Pa.  120,  98  A.  D.  206.  Contra,  Atkins  v.  Withers,  94 
N.  C.  581. 

sseCoulson  v.  Allison,  2  De  Gex,  F.  &  J.  521,  524;   Shipman  v.  Fur- 


§  45a  UNDUE    INFLUENCE.  181 

—  (2)  Confidential  relation.  Whenever  two  persons  stand 
in  such  a  relation  that,  while  it  continues,  confidence  is  neces- 
sarily reposed  by  one,  and  the  influence  which  naturally  grows 
out  of  that  confidence  is  possessed  by  the  other,  and  this  con- 
fidence is  abused,  or  the  influence  is  exerted  to  obtain  an  ad- 
vantage at  the  expense  of  the  confiding  party,  the  person  so 
availing  himself  of  his  position  will  not  be  permitted  to  re- 
tain the  advantage,  although  the  transaction  could  not  have 
been  impeached  if  the  confidential  relation  had  not  existed.838 
In  other  words,  if  a  relation  of  confidence  exists  between 
the  contracting  parties,  whether  arising  out  of  family  ties 
or  otherwise,  a  presumption  of  undue  influence  arises.339  The 
most  frequently  recurring  of  these  relationships,  other  than 
the  family  relation,  are  those  of  executors  and  administrators 
and  persons  entitled  to  a  share  in  the  estate,340  trustee  and 
beneficiary,841  principal  and  agent,842  attorney  and  client,843 

niss,  69  Ala.  555,  565,  44  A.  R.  528;  Hanna  v.  Wilcox,  53  Iowa,  547; 
Leighton  v.  Orr,  44  Iowa,  679.  But  see  Farmer  v.  Farmer,  1  H.  L. 
Cas.  724,  752;  Marksbury  v.  Taylor,  10  Bush  (Ky.)  519. 

«37  Shipman  v.  Furniss,  69  Ala.  555,  565,  44  A.  R.  528;  Rockaf el- 
low  v.  Newcomb,  57  111.  186;  Leighton  v.  Orr,.  44  Iowa,  679;  Hanna 
v.  Wilcox,  53  Iowa,  547;  Turner  v.  Turner,  44  Mo.  535. 

ass  Tate  v.  Williamson,  2  Ch.  App.  55,  61. 

839Hammon,  Cont.  §  142;  Parfitt  v.  Lawless,  L.  R.  2  Prob.  &  Div. 
462,  468;  Odell  v.  Moss,  130  Cal.  352;  Street  v.  Goss,  62  Mo.  226; 
Fisher  v.  Bishop,  108  N.  Y.  25,  2  A.  S.  R.  357. 

840  Cunningham's  Appeal,  122  Pa.  464,  9  A.  S.  R.  121;  Statham  v. 
Ferguson's  Adm'r,  25  Grat.  (Va.)  28. 

341  Nichols  v.  McCarthy,  53  Conn.  299,  55  A.  R.  105;  Jones  v.  Lloyd, 
117  111.  597;  Ward  v.  Armstrong,  84  111.  151;  Smith  v.  Townshend,  27 
Md.  368,  92  A.  D.  637;  Tatum  v.  McLlellan,  50  Miss.  1;  Spencer  & 
Newbold's  Appeal,  80  Pa.  317;  Clarke  v.  Deveaux,  1  Rich.  (S.  C.)  172. 

842  Burke  v.  Taylor,  94  Ala.  530;  Hall  v.  Knappenberger,  97  Mo. 
509,  10  A.  S.  R.  337;  Street  v.  Goss,  62  Mo.  226;  Porter  v.  Woodruff, 
36  N.  J.  Eq.  174;  Hoppin  v.  Tobey's  Ex'rs,  9  R.  I.  42.  See  Gillett 
v.  Peppercorne,  3  Beav.  78;  Jeffries  v.  Wiester,  2  Sawy.  135,  Fed.  Cas. 


182  LAW   OP  EVIDENCE.  §  45a 

doctor  and  patient,344  and  various  spiritual  relationships,345 
but,  as  has  been  said,  equity  has  not  attempted  to  define  them, 
and  there  are  many  others.348 

No.  7,254;  Wilbur  v.  Lynde,  49  Cal.  290;  Byrd  v.  Hughes,  84  111.  174, 
25  A.  R.  442. 

The  same  rule  applies  to  a  transaction  between  a  corporation  and 
a  director.  Cumberland  C.  &  I.  Co.  v.  Parish,  42  Md.  598. 

343  Gibson  v.  Jeyes,  6  Ves.  266;  Yonge  v.  Hooper,  73  Ala.  119;  St 
Leger's  Appeal  from  Probate,  34  Conn.  434,  91  A.  D.  735;  Jennings  v. 
McConnel,  17  111.  148;  Cassem  v.  Heustis,  201  111.  208,  94  A.  S.  R. 
160;  Shirk  v.  Neible,  156  Ind.  66;  Ryan  v.  Ashton,  42  Iowa,  365; 
Bingham  v.  Salene,  15  Or.  208,  3  A.  S.  R.  152;  Greenfield's  Estate,  14 
Pa.  489;  McMahan  v.  Smith,  6  Heisk.  (Tenn.)  167.  See  Kisling  v. 
Shaw,  33  Cal.  425,  91  A.  D.  644;  Zeigler  v.  Hughes,  55  111.  288;  Yea- 
mans  v.  James,  27  Kan.  195;  Dunn  v.  Record,  63  Me.  17;  Merryman 
v.  Euler,  59  Md.  588,  43  A.  R.  564;  Whitehead  v.  Kennedy,  69  N.  Y. 
462. 

s**  Ahearne  v.  Hogan,  Drury,  310;  Dent  v.  Bennett,  4  Mylne  & 
C.  269;  Woodbury  v.  Woodbury,  141  Mass.  329,  55  A.  R.  479;  Cadwalla- 
der  v.  West,  48  Mo.  483;  Crispell  v.  Dubois,  4  Barb.  (N.  Y.)  393.  See 
Watson  v.  Mahan,  20  Ind.  223.  However,  there  is  nothing  in  the  rela- 
tion of  medical  adviser  and  patient  that  per  se  forbids  the  accept- 
ance of  a  gift  to  the  adviser  by  the  patient.  Audenreid's  Appeal,  89 
Pa.  114,  33  A.  R.  731.  And  see  Blackie  v.  Clark,  15  Beav.  595. 

345Allcard  v.  Skinner,  36  Ch.  Div.  145;  Huguenin  v.  Baseley,  14 
Ves.  273;  Nottidge  v.  Prince,  2  Giff.  246;  Nachtrieb  v.  Harmony  Set- 
tlement, 3  Wall.  Jr.  66,  Fed  Cas.  No.  10,003;  Drake's  Appeal  from 
Probate,  45  Conn.  9. 

Spiritualist  and  medium:  Lyon  v.  Honie,  L.  R.  6  Eq.  655;  Connor 
v.  Stanley,  72  Cal.  556,  1  A.  S.  R.  84;  Leighton  v.  Orr,  44  Iowa,  679. 

Confessor  and  penitent:  Parfitt  v.  Lawless,  L.  R.  2  Prob.  &  Div. 
462,  468;  Dent  v.  Bennett,  7  Sim.  539,  546;  Ross.  v.  Conway,  92  Cal. 
632;  Finegan  v.  Theisen,  92  Mich.  173;  Ford  v.  Hennessy,  70  Mo. 
580;  Caspar!  v.  First  German  Church,  82  Mo.  649;  Corrigan  v.  Pironi, 
48  N.  J.  Eq.  607,  47  N.  J.  Eq.  135;  Marx  v.  McGlynn,  88  N.  Y.  357. 
However,  a  priest  or  minister  of  the  gospel  is  not  barred  from  ac- 
cepting a  gift  from  a  parishioner  if  it  is  freely  made.  Greenfield's 
Estate,  24  Pa.  232. 

3«  See  page  178,  supra.  The  mere  relation  of  master  and  servant 
or  landlord  and  boarder  does  not  raise  an  implication  of  confidential 
relationship.  Doran  v.  McConlogue,  150  Pa.  98. 


§  45b  UNDUE   INFLUENCE.  183 

(3)  Termination  of  relation.  Where  a  relation  of  confi- 
dence is  once  established,  either  some  positive  act  or  some 
complete  case  of  abandonment  must  be  shown  in  order  to 
determine  it.  It  will  not  be  considered  as  determined  while 
the  influence  derived  from  it  can  reasonably  be  supposed  to 
remain.347  Thus,  if  the  influence  had  its  inception  in  the 
legal  authority  of  a  parent  or  guardian,  it  is  presumed  to 
continue  for  some  time  after  the  termination  of  the  legal  au- 
thority, until  there  is  a  complete  emancipation  of  the  child, 
so  that  a  free  and  unfettered  judgment  may  be  formed,  in- 
dependent 'of  any  sort  of  control.  And  a  like  rule  applies 
to  all  other  confidential  relations,  whether  arising  from  the 
family  tie  or  otherwise.348 

(b)  Wills.  If  a  will  is  contested  for  undue  influence,  the 
proponent  bears  throughout  the  trial  the  burden  of  proof 
in  the  sense  of  burden  of  persuading  the  jury  that  the  will 
is  the  free  act  of  the  testator.349  But  when  he  has  proved 

347  Rhodes  v.  Bate,  1  Ch.  App.  252,  260;  Holman  v.  Loynes,  4  De 
Gex,  M.  &  G.  270,  283;  Taylor  v.  Taylor,  8  How.  (U.  S.)  183;  Ashton 
v.  Thompson,  32  Minn.  25;  Mason  v.  Ring,  3  Abb.  Dec.  (N.  Y.)  210; 
Womack  v.  Austin,  1  Rich.  (S.  C.)  421. 

After  the  relationship  has  terminated,  and  its  influence  has  ceased 
to  exist,  the  parties  may  deal  with  each  other  the  same  as  with 
strangers.  Wickiser  v.  Cook,  85  111.  68. 

A  contract  made  on  the  advice  of  counsel  twenty  months  after  the 
trust  relation  was  definitely  terminated,  is  not  presumed  to  have  been 
induced  by  undue  influence.  Banner  v.  Rosser,  96  Va.  238. 

»4«  Archer  v.  Hudson,  7  Beav.  551,  560;  Wright  v.  Vanderplank,  8 
De  Gex,  M.  &  G.  133,  137,  146;  Taylor  v.  Taylor,  8  How.  (U.  S.)  183; 
Ferguson  v.  Lowery,  54  Ala.  510,  25  A.  R.  718;  Noble's  Adm'r  v.  Moses, 
81  Ala.  530,  60  A.  R.  175;  Ashton  v.  Thompson,  32  Minn.  25;  Miller 
v.  Simonds,  72  Mo.  669. 

8*9  Livingston's  Appeal  from  Probate,  63  Conn.  68;  Evans  v.  Ar- 
nold, 52  Ga.  169;  Sheehan  v.  Kearney  (Miss.)  21  So.  41,  35  L.  R.  A.  102; 
Tingley  v.  Cowgill,  48  Mo.  291;  6  Current  Law,  1910. 

In  many  states  it  is  held  without  qualification  that  the  burden  of 
proof  as  to  undue  influence  rests  on  the  contestant.  Moore  y. 


184  LAW   OF  EVIDENCE.  §  45b 

the  formal  execution  of  the  instrument  by  the  testator  as  and 
for  his  last  will,  it  constitutes  a  prima  facie  case  of  free- 
dom of  consent,  and  the  burden  of  adducing  evidence  of  un- 
due influence  shifts  to  the  contestant.350 

Generally  speaking,  a  presumption  of  undue  influence  does 
not  arise  from  the  fact  that  the  sole  or  principal  beneficiary 
was  a  member  of  the  same  family  or  household  with  the  tes- 
tator, or  that  the  natural  objects  of  his  bounty  or  some  of 
them  were  excluded  or  discriminated  against.  While  these 
things,  separately  or  in  conjunction,  may  beget  suspicion,  they 
do  n'ot,  as  a  rule,  make  a  prima  facie  case  in  favor  of  the 
contestant.351  In  conjunction  with  other  suspicious  circum- 

Heineke,  119  Ala.  627;  Webber  v.  Sullivan,  58  Iowa,  260;  King  v. 
King,  19  Ky.  L.  R.  868,  42  S.  W.  347;  Baldwin  v.  Parker,  99  Mass.  79, 
96  A.  D.  697;  Bacon  v.  Bacon,  181  Mass.  18,  92  A.  S.  R.  397;  In  re 
Hess'  Will,  48  Minn.  504,  31  A.  S.  R.  665;  Seebrock  v.  Fedawa,  30 
Neb.  424;  Tyler  v.  Gardiner,  35  N.  Y.  559,  594;  In  re  Martin's  Will, 
98  N.  Y.  193;  Woodward  v.  James,  3  Strob.  Law  (S.  C.)  552,  51  A.  D. 
649;  McMechen  v.  McMechen,  17  W.  Va.  683,  41  A.  R.  682;  McMaster 
v.  Scriven,  85  Wis.  162,  39  A.  S.  R.  828. 

350  Bulger  v.  Ross,  98  Ala.  267,  271;  Thompson  v.  Davitte,  59  Ga. 
472;  Sheehan  v.  Kearney  (Miss.)  21  So.  41,  35  L.  R.  A.  102;  Maddox  v. 
Maddox,  114  Mo.  35,  35  A.  S.  R.  734;  McFadin  v.  Catron,  138  Mo.  197; 
Greenwood  v.  Cline,  7  Or.  17;  Armstrong  v.  Armstrong,  63  Wis.  162. 

When  the  contestant  adduces  evidence  of  undue  influence,  the  pre- 
sumption of  fairness  and  freedom  of  consent  arising  from  formal  proof 
of  the  will  disappears,  and  the  question  of  undue  influence  is  to  be  de- 
termined by  the  jury  upon  all  the  evidence,  without  reference  to  any 
presumption.  Morton  v.  Heidorn,  135  Mo.  608,  617. 

36i  Henry  v.  Hall,  106  Ala.  84,  54  A.  S.  R.  22;  Eastis  v.  Montgomery, 
95  Ala.  486,  36  A.  S.  R.  227;  Knox  v.  Knox,  95  Ala.  495,  36  A.  S.  R. 
235;  Bundy  v.  McKnight,  48  Ind.  503;  Webber  v.  Sullivan,  58  Iowa, 
260;  Sechrest  v.  Edwards,  4  Mete.  (Ky.)  163;  In  re  Hess'  Will,  48 
Minn.  504,  31  A.  S.  R.  665;  Maddox  v.  Maddox,  114  Mo.  35,  35  A.  S. 
R.  734,  limiting  Gay  v.  Gillilan,  92  Mo.  250,  I  A.  S.  R.  712;  Berberet 
v.  Berberet,  131  Mo.  399,  52  A.  S.  R.  634;  Dale  v.  Dale,  36  N.  J.  Eq. 
269;  Turnure  v.  Turnure,  35  N.  J.  Eq.  437;  Woodward  v.  James,  3 
Strob.  Law  (S.  C.)  552,  51  A.  D.  649;  McMaster  v.  Scriven,  85  Wis. 
162,  39  A.  S.  R.  828. 


§  45b  UNDUE    INFLUENCE.  185 

stances,  however,  they  may  effect  this  result,  as  where,  for 
example,  the  beneficiary  stood  in  a  fiduciary  relation  with  the 
testator.  Here  a  presumption  of  undue  influence  often  arises.852 
The  fact  that  a  will  contains  a  provision  in  favor  of  the 
draughtsman  is  a  suspicious  circumstance  of  more  or  less 
weight,  according  to  the  facts  of  the  particular  case,  on  the 
question  of  undue  influence;353  and  if  the  draughtsman,  not 

The  presumption  arises,  however,  if  one  member  of  the  family  who 
has  complete  control  over  the  testator  induces  him  to  make  a  will 
to  her  advantage,  and  to  the  disadvantage  of  others  who  have  equal 
or  superior  claims  upon  his  bounty.  Carroll  v.  Hause,  48  N.  J.  Eq. 
269,  27  A.  S.  R.  469. 

No  presumption  of  undue  influence  arises  from  the  fact  that  one 
spouse  makes  gifts  by  will  to  the  other.  Orth  v.  Orth,  145  Ind.  184, 
67  A.  S.  R.  185;  Small  v.  Small,  4  Me.  220,  16  A.  D.  253;  Latham  v. 
Udell,  38  Mich.  238;  Hughes  v.  Murtha,  32  N.  J.  Eq.  288;  Arm- 
strong v.  Armstrong,  63  Wis.  162.  Nor  does  the  presumption  arise 
from  the  fact  that  one  spouse  revokes  or  changes  a  previously 
drawn  will  to  gratify  the  other.  In  re  Nelson's  Will,  39  Minn. 
204;  Rankin  v.  Rankin,  61  Mo.  295.  Neither  does  a  presumption 
arise  from  the  fact  that  the  testator  or  testatrix  makes  a  gift  by 
will  to  one  with  whom  he  or  she  is  living  or  has  lived  in  illicit  in- 
tercourse. Smith  v.  Henline,  174  111.  184;  Dickie  v.  Carter,  42 
111.  376;  In  re  Donnely's  Will,  68  Iowa,  126;  Porschet  v.  Porschet, 
82  Ky.  93,  56  A.  R.  880;  Sunderland  v.  Hood,  84  Mo.  293;  Monroe  v. 
Barclay,  17  Ohio  St.  302,  93  A.  D.  620;  Wainwright's  Appeal,  89  Pa. 
220;  Rudy  v.  Ulrich,  69  Pa.  177,  8  A.  R.  238;  Dean  v.  Negley,  41  Pa. 
312,  80  A.  D.  620. 

862  Moore  v.  Spier,  80  Ala.  129;  Meek  v.  Perry,  36  Miss.  190;  Brid- 
well  v.  Swank,  84  Mo.  455;  Maddox  v.  Maddox,  114  Mo.  35,  35  A.  S. 
R.  734  (semble);  Garvin  v.  Williams,  44  Mo.  465,  100  A.  D.  314; 
Marx  v.  McGlynn,  88  N.  Y.  357;  Wilson  v.  Mitchell,  101  Pa.  495. 
See,  however,  Eastis  v.  Montgomery,  93  Ala.  293,  95  Ala.  486,  36  A. 
S.  R.  227.  Contra,  Brook's  Estate,  54  Cal.  471;  Wheeler  v.  Whipple, 
44  N.  J.  Eq.  141. 

No  presumption  of  undue  influence  arises  from  the  fact  that  the 
beneficiaries  are  those  who  stand  nearest  the  testator  in  respect  and 
affection,  or  by  reason  of  intimate  social  or  domestic  relations.  Good- 
bar  v.  Lidikey,  136  Ind.  1,  43  A.  S.  R.  296;  In  re  Hess'  Will,  48  Minn. 
504,  31  A.  S.  R.  665. 


186  LAW   OP  EVIDENCE. 

being  a  relative,  stood  in  a  relation  of  confidence  with  the 
testator,  a  presumption  of  undue  influence  may  arise.354 

H.   HUSBAND  AND   WIFE.** 

§  46.    Marital  coercion. 

(a)  Crimes.  If  a  crime  is  committed  by  a  married  woman 
in  the  presence  of  her  husband,  and  nothing  more  appears,  a 
presumption  of  law  arises  that  she  acted  by  his  coercion.356 

353Rusling  v.  Rusling,  36  N.  J.  Eq.  603. 

The  fact  that  the  draughtsman  takes  a  benefit  by  the  will  has  a 
bearing  also  on  the  question  whether  the  testator  was  aware  of  the 
contents  of  the  document.  See  §  52,  infra. 

354  Lyons  v.   Campbell,   88   Ala.   462;    Richmond's  Appeal,   59   Conn. 
226,  21  A.  S.  R.  85;   Breed  v.  Pratt,  18  Pick.   (Mass.)   115;   Riddell  v. 
Johnson's  Ex'r,  26  Grat.  (Va.)  152. 

The  presumption  arises  also  where  the  confidential  agent  dictates 
or  procures  a  provision  in  favor  of  a  member  of  his  family.  Henry 
v.  Hall,  106  Ala.  84,  54  A.  S.  R.  22;  In  re  Barney's  Will,  70  Vt.  352. 
But  it  does  not  arise  where  the  draughtsman  and  beneficiary  was  a 
relative.  Carter  v.  Dixon,  69  Ga.  82;  Rusling  v.  Rusling,  36  N.  J. 
Eq.  603;  Waddington  v.  Buzby,  45  N.  J.  Eq.  173;  Nexsen  v.  Nexsen, 
3  Abb.  Dec.  (N.  Y.)  360;  Coffin  v.  Coffin,  23  N.  Y.  9.  Contra,  Bush  v. 
Delano,  113  Mich.  321. 

The  presumption  will  not  be  indulged  in  an  action  to  set  aside  the 
probate  of  a  will.  In  such  a  case  the  plaintiff  must  adduce  evidence 
of  undue  influence  independent  of  the  mere  fact  of  the  relation  of 
confidence.  Post  v.  Mason,  91  N.  Y.  539,  43  A.  R.  689. 

It  has  been  said  that  the  presumption  arising  from  the  fact  that 
a  beneficiary  under  a  will  draughted  the  instrument  is  one  of  fraud, 
and  not  of  undue  influence,  unless  it  appears  that  he  stood  in  a  rela- 
tion of  confidence  with  the  testator,  in  which  case  a  presumption  of 
undue  influence  may  arise.  Henry  v.  Hall,  106  Ala.  84,  54  A.  S.  R.  22. 

355  Presumption    of    marriage     arising    from     cohabitation,     see     § 
58  (b),   infra.     Presumption   of   divorce,    see    §    35,    supra.     Presump- 
tion of  death  of  spouse,  see  §  62  (c),  infra.    Presumption  of  regularity 
of  ceremonial  marriage,  see  §  29,  supra.    Presumptions  affecting  parent 
and  child,  see  §§  70-73,  infra. 

358  Marital  coercion,  whether  actual  or  presumed,  is  an  affirmative 
defense.  Consequently,  an  indictment  of  a  married  woman  need  not 
negative  the  fact  of  coercion.  State  v.  Nelson,  29  Me.  329;  Long,  Dom. 
Rel.  263. 


§  46a  HUSBAND   AND   WIFE.  187 

This  presumption  was  at  one  time  a  conclusive  one,  and  evi- 
dence was  not  admissible  to  show  that  the  wife  acted  of  her 
own  free  will.  At  the  present  day,  however,  the  presumption 
is  disputable,  and  if  evidence  is  introduced  which  tends  to 
show  that  she  was  the  prime  mover  or  a  willing  participator 
in  the  crime,  the  question  of  coercion  is  for  the  jury.857 

In  the  beginning,  this  presumption  was  doubtless  applied 
to  all  crimes  alike,  but  in  some  jurisdictions  the  later  cases 
have  engrafted  exceptions  to  the  general  rule.  These  are- 
professedly  based  on  the  nature,  grade,  and  heinousness  of 
the  felony,  but  the  exact  line  of  separation  is  not  settled. 
The  cases  are  grouped  in  the  note  according  to  offense.358 

A  married  woman  who  urges  marital  coercion  as  a  defense  is  en- 
titled to  have  the  presumption  stated  to  the  jury  if  the  evidence  makes 
it  applicable.  Com.  v.  Eagan,  103  Mass.  71. 

857  Rex  v.  Hughes,  2  Lewin  Cr.  Gas.  229;  Reg.  v.  Torpey,  12  Cox  Cr. 
Cas.  45;  State  v.  Cleaves,  59  Me.  298,  8  A.  R.  422;  Com.  v.  Hopkins,  133 
Mass.  381;  Com.  v.  Moore,  162  Mass.  441;  Com.  v.  Eagato,  103  Mass. 
71;  Com.  v.  Daley,  148  Mass.  11;  Com.  v.  Gormley,  133  Mass.  580; 
People  v.  Wright,  38  Mich.  744,  31  A.  R.  331;  State  v.  Ma  Foo,  110  Mo. 
7,  33  A.  S.  R.  414;  Goldstein  v.  People,  82  N.  Y.  231;  Seller  v.  People, 
77  N.  Y.  411;  State  v.  Williams,  65  N.  C.  398;  Tabler  v.  State,  34  Ohio 
St.  127;  State  v.  Shee,  13  R.  I.  535;  State  v.  Parkerson,  1  Strob.  Law 
(S.  C.)  169;  Uhl  v.  Com.,  6  Grat.  (Va.)  706;  Miller  v.  State,  25  Wis. 
384;  Long,  Dom.  Rel.  264. 

To  dispel  the  presumption  of  coercion,  the  state  is  not  bound  to 
show  that  the  husband  disapproved  of  the  crime;  it  is  enough  to 
show  that  he  did  not  incite  it  or  aid  in  its  commission.  State  v.  Ma 
Foo,  110  Mo.  7,  33  A.  S.  R.  414. 

SOB  The  presumption  of  coercion  applies  in  the  following  cases,  viz. : 

Arson.    Davis  v.  State,  15  Ohio,  72,  45  A.  D.  559. 

Assault  and  battery.  Com.  v.  Neal,  10  Mass.  152,  6  A.  D.  105  (sem- 
ble);  Com.  v.  Eagan,  103  Mass.  71;  State  v.  Williams,  65  N.  C.  398; 
State  v.  Parkerson,  1  Strobh.  Law  (S.  C.)  169. 

Burglary.     J.  Kelyng,  31;   Com.  v.  Trimmer,  1  Mass.  476. 

Counterfeiting.  Connolly's  Case,  2  Lewin,  Cr.  Cas.  229;  Rex  v_ 
Price,  8  Car.  &  P.  19. 

Criminal  duress.     Reg.  v.  John,  13  Cox  Cr.  Cas.  100. 

Having  burglar's  tools.     State  v.  Potter,  42  Vt.  495. 


188  LAW   OF   EVIDENCE.  §   46a 

Generally  speaking,  the  husband's  presence  at  the  time  the 
crime  is  committed  is  a  necessary  element  of  the  basis  of  the 
presumption;359  and  this  is  true,  even  where  the  wife  commits 
the  crime  by  his  advice.360  It  is  not  necessary,  however,  that 
the  husband  should  have  been  actually  present.  It  is  enough 
if  he  was  so  near  as  to  exercise  a  controlling  influence  over 
the  wife's  will.361  Thus  it  has  been  held  that  the  presumption 

Intoxicating  liquor  offenses.  Hensly  v.  State,  52  Ala.  10;  State  v. 
Fertig,  98  Iowa,  139;  State  v.  Cleaves,  59  Me.  298,  8  A.  R.  422  (semble); 
Com.  v.  Burk,  11  Gray  (Mass.)  437;  Com.  v.  Pratt,  126  Mass.  462; 
State  v.  Boyle,  13  R.  I.  537. 

Keeping  bawdy  house.  Com.  v.  Wood,  97  Mass.  225;  Com.  v.  Hill, 
145  Mass.  305. 

Keeping  gambling  house.  Com.  v.  Hill,  145  Mass.  305.  Cdntra,  Rex 
v.  Dixon,  10  Mod.  335. 

Larceny.    Rex  v.  Knight,  1  Car.  &  P.  116. 

Receiving  stolen  goods.    Reg.  v.  Matthews,  1  Denison  Cr.  Cas.  596. 

Robbery.  Reg.  v.  Torpey,  12  Cox  Cr.  Cas.  45;  People  v.  Wright,  38 
Mich.  744,  31  A.  R.  331  (semble). 

The  presumption  does  not  apply  in  the  following  cases,  viz.: 

Murder.  Bibb  v.  State,  94  Ala.  31,  33  A.  S.  R.  88;  State  v.  Barnes, 
48  La.  Ann.  460;  State  v.  Ma  Foo,  110  Mo.  7,  33  A.  S.  R.  414.  Contra, 
State  v.  Kelly,  74  Iowa,  589. 

Perjury.  Smith  v.  Meyers,  54  Neb.  1.  And  see  Com.  v.  Moore,  162 
Mass.  441. 

Treason.  Hamilton's  Case,  4  Cobb.  State  Tr.  1155,  1169;  State  v. 
Ma  Foo,  110  Mo.  7,  33  A.  S.  R.  414  (semble). 

Quaere,  whether  the  presumption  of  marital  coercion  applies  to 
crimes  denned  by  act  of  congress.  U.  S.  v.  De  Quilfeldt,  2  Cr.  Law 
Mag.  &  Rep.  211. 

359  Rex  v.  Hughes,  2  Lewin  C.  C.  229;  Reg.  v.  John,  13  Cox  Cr.  Cas. 
100,  107;  Pennybaker  v.  State,  2  Blackf.  (Ind.)  484;  Com.  v.  Murphy, 
2  Gray  (Mass.)  510;  Com.  v.  Welch,  97  Mass.  593;  State  v.  Baker,  71 
Mo.  475;  State  v.  Collins,  1  McCord  (S.  C.)  355. 

sec  Rex  v.  Morris,  Russ.  &  R.  270;  Com.  v.  Feeney,  13  Allen  (Mass.) 
560)  Com.  v.  Butler,  1  Allen  (Mass.)  4;  State  v.  Haines,  35  N.  H.  207; 
Seller  v.  People,  77  N.  Y.  411;  State  v.  Potter,  42  Vt.  495. 

sei  Connolly's  Case,  2  Lewin  Cr.  Cas.  229;  Com.  v.  Munsey,  112  Mass. 
287;  Com.  v.  Daley,  148  Mass.  11;  Com.  v.  Flaherty,  140  Mass.  454.  In 
apparent  conflict  with  this  it  has  been  held  that  mere  proximity  of 


§  46b  HUSBAND    AND   WIFE.  189 

may  arise  where  the  husband  was  in  the  room  adjoining  that 
in  which  the  wife  committed  the  crime.362  The  presumption 
applies  in  favor  of  the  wife  if  the  crime  is  begun  by  the  hus- 
band's advice,  and  completed  in  his  presence,  even  though  in- 
termediate acts  necessary  to  the  commission  of  the  offense  are 
done  by  the  wife  in  his  absence.  This  rule  is  illustrated  by 
cases  wherein  the  wife,  at  the  husband 's  request,  conveys  weap- 
ons or  other  implements  into  the  jail  where  he  is  confined  to 
aid  him  in  an  escape.  In  a  trial  of  the  wife  for  the  offense,  the 
presumption  of  coercion  has  been  held  to  apply.363 

The  presumption  of  coercion  operates  not  only  in  favor  of 
the  wife,  but  also  against  the  husband.  The  consequence  is, 
therefore,  that  the  wife  is  excused  from  liability  for  the  act  so 
done,  while  the  husband,  on  the  other  hand,  is  held  responsible 
for  it.384 

(b)  Torts.  A  like  presumption  arises  with  like  effect  in 
case  a  tort  is  committed  by  the  wife  in  the  presence  of  the 
husband.  At  common  law,  the  husband  is  liable  for  the 
wife's  torts,  whether  committed  in  or  out  of  his  presence,  and 
whether  or  not  she  acted  by  his  direction.  The  wife  also  is 
liable  for  torts  having  no  connection  with  contract,  unless 
the  husband  was  both  present  and  directed  the  doing  of  it  at 
the  time  of  commission;  and  a  presumption  of  coercion  arises 
where  the  tort  was  done  by  her  in  his  presence.365  To  raise 

the  husband  does  not  raise  the  presumption.  Seiler  v.  People,  77  N. 
Y.  411;  State  v.  Shee,  13  R.  I.  535. 

862  state  v.  Fertig,  98  Iowa,  139;  Com.  v.  Burk,  11  Gray  (Mass.) 
437. 

»«8  Ryan's  Case,  1  Car.  &  P.  117,  note;  State  v.  Miller,  162  Mo.  253, 
85  A.  S.  R.  498. 

864Hensly  v.  State,  52  Ala.  10;  Mulvey  v.  State,  43  Ala.  316,  94  A.  D. 
684;  Com.  v.  Hill,  145  Mass.  305.  307;  Com.  v.  Pratt,  126  Mass.  462; 
State  v.  Boyle,  13  R.  I.  537. 

sesstrouse  v.  Leipf,  101  Ala.  433,  46  A.  S.  R.  122;  Kosminsky  v. 
Goldberg,  44  Ark.  401;  Curd  v.  Dodds,  6  Bush  (Ky.)  681;  Marshall  v. 


190  LAW  OF 

this  presumption  in  cases  of  tort,  as  in  cases  of  crime,  the 
wrongful  act  must  have  been  done  in  the  presence,  actual  or 
constructive,  of  the  husband.  It  is  not  enough  that  the  hus- 
band had  directed  the  wife  to  do  the  act.366  And  the  pre- 
sumption is  rebuttable  by  evidence  that  the  wife  acted  of  her 
own  accord.307 

(c)  Modern  statutes.  This  rule  of  presumption  has  been 
severely  criticised  as  being  unsuited  to  the  present  state  of 
society,  in  view  of  the  rights  given  to  married  women  by  stat- 
ute, and  the  diminished  power  of  control  which  by  law  and 
usage  husbands  now  have  over  the  persons  and  property  01 
their  wives.  However  this  may  be,  the  rule  has  not,  generally 
speaking,  been  abrogated  or  modified  by  the  married  women's 
acts,  with  reference  either  to  crimes368  or  to  torts.369  In  some 

Oakes,  51  Me.  308;  Warner  v.  Moran,  60  Me.  227;  Nolan  v.  Traber,  49 
Md.  460,  33  A.  R.  277,  279;  Brazil  v.  Moran,  8  Minn.  236,  83  A.  D.  772; 
Flesh  v.  Lindsey,  115  Mo.  1,  14,  37  A.  S.  R.  374,  380;  Carleton  v. 
Haywood,  49  N.  H.  314;  Hildreth  v.  Camp,  41  N.  J.  Law,  306;  Cassin 
v.  Delany,  38  N.  Y.  178;  Sisco  v.  Cheeney,  Wright  (Ohio)  9;  Appeal 
of  Franklin's  Adm'r,  115  Pa.  534,  2  A.  S.  R.  583;  Wheeler  &  W.  Mfg. 
Co.  v.  Heil,  115  Pa.  487,  2  A.  S.  R.  575;  McKeown  v.  Johnson,  1  McCord 
(S.  C.)  578,  10  A.  D.  698;  Culmer  v.  Wilson,  13  Utah,  129,  145,  57 
A.  S.  R.  713,  721  (semble);  Long,  Dom.  Rel.  260. 

see  Heckle  v.  Lurvey,  101  Mass.  344,  3  A.  R.  366;  Handy  v.  Foley,  121 
Mass.  259,  23  A.  R.  270;  Hildreth  v.  Camp,  41  N.  J.  Law,  306;  Wheeler 
&  W.  Mfg.  Co.  v.  Heil,  115  Pa.  487,  2  A.  S.  R.  575;  Appeal  of  Franklin's 
Adm'r,  115  Pa.  534,  2  A.  S.  R.  583;  Gill  v.  State,  39  W.  Va.  479,  485, 
45  A.  S.  R.  928,  934;  Long,  Dom.  Rel.  260. 

seiKosminsky  v.  Goldberg,  44  Ark.  401;  Warner  v.  Moran,  60  Me. 
227;  Ferguson  v.  Brooks,  67  Me.  251;  Marshall  v.  Oakes,  51  Me.  308; 
Nolan  v.  Traber,  49  Md.  460,  33  A.  R.  277,  280  (semble);  Miller  v. 
Sweitzer,  22  Mich.  391;  Brazil  v.  Moran,  8  Minn.  236,  83  A.  D.  772; 
Carleton  v.  Haywood,  49  N.  H.  314;  Hildreth  v.  Camp,  41  N.  J.  Law, 
306;  Cassin  v.  Delany,  38  N.  Y.  178;  Wheeler  &  W.  Mfg.  Co.  v.  Heil, 
115  Pa.  487,  2  A.  S.  R.  575;  Appeal  of  Franklin's  Adm'r,  115  Pa,  534, 
2  A.  S.  R.  583;  Gill  v.  State,  39  W.  Va.  479,  485,  45  A.  S.  R.  928,  934 
(semble);  Long,  Dom.  Rel.  260. 

3«8  Com.  v.  Gannon,  97  Mass.  547.     Contra,  City  Council  v.  Van  Roven, 


§  47a  HUSBAND    AND   WIFE.  191 

states,  however,  it  has  been  expressly  done  away  with  by 
statute.870 

§  47.    Agency. 

(a)  Care  of  absentee's  property.  Under  some  circum- 
stances the  wife  is  presumed  to  be  the  agent  of  the  husband. 
Thus,  if  he  absents  himself  from  home,  she  is  presumed  to 
have  authority  to  do  all  necessary  acts  for  the  care,  protec- 
tion, and  management  of  such  of  his  property  as  he  has  left 
in  her  possession,  the  extent  of  the  agency  depending  upon 
the  circumstances  of  the  particular  case.371 

Whether  the  circumstances  are  such  as  to  give  the  wife 
authority  to  protect  or  manage  the  husband's  property  in  his 
absence  is  a  question  of  fact  in  the  particular  case;  and  so 
far  as  third  persons  are  concerned,  it  is  immaterial  to  the 
inquiry  that  the  husband,  before  he  left,  expressly  forbade 
the  wife  to  act  in  his  behalf.  The  so-called  presumption  of 
agency  may  therefore  be  regarded  in  two  lights:  First,  as 
a  presumption  of  fact,  so  far  as  concerns  the  question  wheth- 
er the  circumstances  created  a  necessity  for  the  wife's  acting 
in  the  husband's  behalf;  second,  assuming  that  necessity  to 
exist,  the  presumption  is  a  conclusive  presumption  of  law, 

2  McCord  (S.  C.)  465.  Thus,  the  husband  still  has  legal  control  of  the 
domicile,  and,  accordingly,  if  the  wife  makes  an  illegal  use  of  it  in 
the  husband's  presence,  the  presumption  of  coercion  applies,  and  she 
is  excused.  Com.  v.  Wood,  97  Mass.  225;  Com.  v.  Barry,  115  Mass. 
146;  Com.  v.  Kennedy,'  119  Mass.  211;  Com.  v.  Carroll,  124  Mass.  30. 

8«»Strouse  v.  Leipf,  101  Ala.  433,  46  A.  S.  R.  122.  Contra,  Peak  v. 
Lemon,  1  Lans.  (N.  Y.)  295. 

STO  Crimes.  Edwards  v.  State,  27  Ark.  493;  Freel  v.  State,  21  Ark. 
212;  Bell  v.  State,  92  Ga.  49. 

Torts.    Blakeslee  v.  Tyler,  55  Conn.  397. 

sill  Bishop,  Mar.,  Div.  &  Sep.  §§  1206-1212;  Church  v.  Landers,  10 
Wend.  (N.  Y.)  79;  Felker  v.  Emerson,  16  Vt.  653,  42  A.  D.  532.  And 
see  Benjamin  v.  Benjamin,  15  Conn.  347,  39  A.  D.  384;  Casteel  v.  Cas- 
teel,  8  Blackf.  (Ind.)  240,  44  A.  D.  763;  1  Clark  &  S.  Agency.  202. 


192  LAW   OF   EVIDENCE.  §   47t> 

so  far  as  the  question  of  agency  in  fact  is  concerned, — that 
is,  the  question  of  actual  agency  is  immaterial,  as  against 
third  persons,  if  a  necessity  for  the  wife's  acting  in  his  be- 
half existed. 

(b)  Family  necessaries.  The  wife  is  also  presumed,  under 
some  circumstances,  to  have  authority  to  bind  the  husband 
for  family  necessaries.372  This  presumption,  however,  does  not 
prevail  where  the  husband  has  not  refused  or  neglected  to 
maintain  the  wife  ;373  nor  does  it  arise  where  the  spouses  are 
dwelling  apart,374  unless  she  has  left  him  with  his  consent,37* 
or  for  justifiable  cause,376  or  he  has  wrongfully  abandoned 

372  Montague  v.  Benedict,  3  Barn.  &  C.  631  (semble);  Rea  v.  Durkee, 
25  111.  503;  Baker  v.  Carter,  83  Me.  132,  23  A.  S.  R.  764;  Bergh  v.  War- 
ner, 47  Minn.  250,  28  A.  S.  R.  362;   Morrison  v.  Holt,  42  N.  H.  478,  80 
A.  D.  120;  Vusler  v.  Cox,  53  N.  J.  Law,  516;  Moore  v.  Copley,  165  Pa. 
294,  44  A.  S.  R.  664;  1  Clark  &  S.  Agency,  205. 

373  Holt  v.  Brien,  4  Barn.  &  Aid.  252;   Rea  v.  Durkee,  25  111.  503; 
Baker  v.  Carter,  83  Me.  132,  23  A.  S.  R.  764;  Bergh  v.  Warner,  47  Minn. 
250,  28  A.  S.  R.  362;   Baker  v.  Barney,  8  Johns.    (N.  Y.)   72,  5  A.  D. 
326. 

374  Mitchell  v.  Treanor,  11  Ga.  324,  56  A.  D.  421;  Rea  v.  Durkee,  25 
111.  503;    Oinson  v.  Heritage,  45  Ind.  73,  15  A.  R.  258;    Harttmann  v. 
Tegart,  12  Kan.  177;    Billing  v.  Pilcher,   7  B.  Mon.    (Ky.)    458,  46  A. 
D.  523;  Belknap  v.  Stewart,  38  Neb.  304,  41  A.  S.  R.  729;  Vusler  v.  Cox, 
53  N.  J.  Law,  516;  McCutchen  v.  McGahay,  11  Johns.  (N.  Y.)  281,  6  A. 
D.  373;  Walker  v.  Simpson,  7  Watts  &  S.  (Pa.)  83,  42  A.  D.  216;  Brow» 
v.  Mudgett,  40  Vt.  68;  Sturtevant  v.  Starin,  19  Wis.  268. 

375  Pearson  v.   Darrington,   32   Ala.  227;    Ross  v.  Ross,   69   111.   569; 
Belknap  v.  Stewart,  38  Neb.  304,  41  A.  S.  R.  729;   Vusler  v.  Cox,  53 
N.  J.  Law,  516;  Baker  v.  Barney,  8  Johns.  (N.  Y.)  72,  5  A.  D.  326. 

376Zeigler  v.  David,  23  Ala.  127;  Ross  v.  Ross,  69  111.  569;  Mitchell 
v.  Treanor,  11  Ga.  324,  56  A.  D.  421;  Billing  v.  Pilcher,  7  B.  Mon.  (Ky.) 
458,  46  A.  D.  523;  Belknap  v.  Stewart,  38  Neb.  304.  41  A.  S.  R.  729; 
Allen  v.  Aldrich,  29  N.  H.  63;  Vusler  v.  Cox,  53  N.  J.  Law,  516:  Sturte- 
vant v.  Starin,  19  Wis.  268. 

The  presumption  may  arise  where  the  husband  refuses  to  let  the 
wife  live  with  him.  Cartwright  v.  Bate,  1  Allen  (Mass.)  514.  79  A. 
D.  759;  Allen  v.  Aldrich,  29  N.  H.  63;  McCutchen  v.  McGahay,  11 
Johns.  (N.  Y.)  281,  6  A.  D.  373;  Cunningham  v.  Irwin,  7  Serg.  &  R. 


§  48  IDENTITY.  193 

her,877  and  no  decree  for  alimony  has  been  passed378  before 
the  necessaries  are  furnished.379 

To  render  the  husband  liable  for  his  wife's  necessaries,  they 
must  have  been  furnished  on  his  credit.  If  they  were  supplied 
on  the  credit  of  the  wife's  separate  estate,  or  on  the  credit 
of  a  third  person,  the  husband  is  not  liable.380 

The  so-called  presumption  of  agency  arising  from  the  hus- 
band's refusal  or  neglect  to  provide  the  wife  with  the  neces- 
saries of  life  is  a  conclusive  presumption  of  law,  not  a  true 
presumption,  and  is  simply  an  indirect  expression  of  the  rule 
of  law  that,  under  the  circumstances  prescribed,  the  husband 
is  liable  for  necessaries  furnished  the  wife.  The  agency  in 
such  cases  is  not  a  matter  of  inference;  nor,  on  the  other 
hand,  is  evidence  admissible  to  disprove  it.  Agency  in  fact 
is  immaterial,  as  is  shown  by  the  rule  that  the  husband's  lia- 
bility is  not  affected  by  the  fact  that  he  has  given  orders  that 
the  wife's  needs'  shall  not  be  supplied.381  The  husband's  lia- 
bility is  quasi  contractual,  the  same  as  that  of  a  parent  to 
whose  minor  child  necessaries  are  furnished  upon  his  own 
failure  to  do  so.382 

I.  IDENTITY. 

§  48.  If  several  acts  are  shown,  and  the  actor  in  each 
bears  the  same  name,  the  agreement  of  name  may  give  rise 

(Pa.)  247,  10  A.  D.  458;  Hultz  v.  Gibbs,  66  Pa.  360.  But  not  if  she  has 
adequate  means  of  support.  Hunt  v.  Hayes,  64  Vt.  89,  33  A.  S.  R.  917. 

SIT  Kenyon  v.  'Farris,  47  Conn.  510,  36  A.  R.  86;  Carstens  v.  Hansel- 
man,  61  Mich.  426,  1  A.'S.  R.  606;  Allen  v.  Aldrich,  29  N.  H.  63. 

STB  Bennett  v.  O'Fallon,  2  Mo.  69,  22  A.  D.  440;  Hare  v.  Gibson,  32 
Ohio  St.  33,  30  A.  R.  568. 

379  Mitchell  v.  Treanor,  11  Ga.  324,  56  A.  D.  421. 

sso  Pearson  v.  Darrington,  32  Ala.  227;  Mitchell  v.  Treanor,  11  Ga. 
324,  56  A.  D.  421;  Moses  v.  Fogartie,  2  Hill  (S.  C.)  335;  Carter  v. 
Howard,  39  Vt.  106.  Contra,  Furlong  v.  Hysom,  35  Me.  332;  Moore 
y.  Copley,  165  Pa.  294,  44  A.  S.  R.  664. 

881  Morrison  v.  Holt,  42  N.  H.  478,  80  A.  D.  120. 

882  See  Hammon,  Cont.  §  23 ;   1  Clark  &  S.  Agency,  209. 

Hammon,  Ev. — 13. 


194  LAW  OF   EVIDENCE.  §  43 

to  a  presumption  that  they  are  one  and  the  same  person.  In 
other  words,  identity  of  name  may  create  a  presumption  of 
identity  of  person.  In  some  cases  this  presumption  may  be 
regarded  as  nothing  more  than  one  of  fact, — a  mere  infer- 
ence of  identity;383  and  even  as  such  it  is  often  disallowed.884 
In  most  jurisdictions,  however,  a  true  presumption  of  identity 
of  person  arises  from  identity  of  name, — time  and  place  of 
existence  permitting.385  This  presumption  is  not  conclusive, 

sss  Bond.     Cobb  v.  Haynes,  8  B.  Mon.   (Ky.)   137. 

Deed.  Summer  v.  Mitchell,  29  Fla.  179,  30  A.  S.  R.  106  (semble) ; 
Brown  v.  Metz,  33  111.  339,  85  A.  D.  277;  Oilman  v.  Sheets,  78  Iowa, 
499;  Gates  v.  Loftus,  3  A.  K.  Marsh.  (Ky.)  202. 

Judgment.  Reg.  v.  Levy,  8  Cox  Cr.  Gas.  73;  Campbell  v.  Wallace, 
46  Mich.  320. 

Negotiable  instrument.    Sewell  v.  Evans,  4  Q.  B.  626. 

Patent  for  land.    Leland  v.  Eckert,  81  Tex.  226. 

384  Bond.  Middleton  v.  Sandford,  4  Camp.  34;  Jackson  v.  Christ- 
man,  4  Wend.  (N.  Y.)  277. 

Deed.  Hoyt  v.  Newbold,  45  N.  J.  Law,  219,  46  A.  R.  757;  Kinney 
v.  Flynn,  2  R.  I.  319. 

Negotiable  instrument.    Whitelocke  v.  Musgrove,  1  Cromp.  &  M.  511. 

Public  record.  Smith  v.  Fuge,  3  Camp.  456;  Barber  v.  Holmes,  3  Esp. 
190;  Wedgwood's  Case,  8  Me.  75;  Morrissey  v.  Wiggins  Ferry  Co.,  47 
Mo.  521. 

sss  Daby  v.  Ericsson,  45  N.  Y.  786. 

Deed.  Stebbins  v.  Duncan,  108  U.  S.  32;  Lee  v.  Murphy,  119  Cal. 
364;  Scott  v.  Hyde,  21  D.  C.  531  (semble);  Morris  v.  McClary,  43 
Minn.  346;  Flournoy  v.  Warden,  17  Mo.  435;  Rupert  v.  Penner,  35  Neb. 
587,  17  L.  R.  A.  824;  Sitler  v.  Gehr,  105  Pa.  577,  51  A.  R.  207,  218 
(semble);  Smith  v.  Gillum,  80  Tex.  120;  Cross  v.  Martin,  46  Vt.  14. 

Judgment.  People  v.  Rolfe,  61  Cal.  540;  Douglas  v.  Dakin,  46  Cal. 
50;  Aultman  v.  Timm,  93  Ind.  158;  Bayha  v.  Mumford,  58  Kan.  445; 
Gitt  v.  Watson,  18  Mo.  274;  State  v.  Kelsoe,  76  Mo.  505;  State  v.  Mc- 
Guire,  87  Mo.  642;  Green  v.  Heritage,  63  N.  J.  Law,  455;  Ritchie  v. 
Carpenter,  2  Wash.  St.  512,  26  A.  S.  R.  877. 

Land  patent.  Geer  v.  M.  L.  &  M.  Co.,  134  Mo.  85,  56  A.  S.  R.  489; 
Jackson  v.  Goes,  13  Johns.  (N.  Y.)  518,  7  A.  D.  399  (semble) ;  Jack- 
son v.  King,  5  Cow.  (N.  Y.)  237,  15  A.  D.  468;  Robertson  v.  Du  Bose, 
76  Tex.  1. 

Marriage  record.    State  v.  Moore,  61  Mo.  276. 


§  48  IDENTITY.  195 

but  disputable,  and  constitutes,  accordingly,  nothing  more 
than  a  prima  facie  case  of  identity  which  may  be  rebutted.386 
The  presumption  depends  to  a  great  extent  upon  whether 
the  name  is  common  or  unusual,387  upon  the  population  of  the 
place  where  the  persons  lived  who  are  sought  to  be  identified 
as  one,388  and  upon  the  time  when  they  are  shown  to  have 
lived.389  To  justify  the  presumption,  according  to  some  cases, 
it  is  not  enough  that  the  surname  and  the  initials  of  the  Chris- 
tian name  or  names  are  the  same;  the  full  name  must  be 
identical.390 

Negotiable  instrument.     McConeghy  v.  Kirk,  68  Pa.  203. 

Pleading.  Hennell  v.  Lyon,  1  Barn.  &  Aid.  182;  Filkins  v.  O'Sul- 
livan,  79  111.  524;  Sweetland  v.  Porter,  43  W.  Va.  189. 

Process.     Givens  v.  Tidmore,  8  Ala.  745. 

Statute.     Wilson  v.  Holt,  83  Ala.  528,  3  A.  S.  R.  768. 

Will.  Williams'  Estate,  128  Cal.  552,  79  A.  S.  R.  67;  Goodell  v. 
Hibbard,  32  Mich.  47. 

386  Wilson  v.  Holt,  83  Ala.  528,  3  A.  S.  R.  768;  Givens  v.  Tidmore, 
8  Ala.  745;  In  re  Williams'  Estate,  128  Cal.  552,  555,  79  A.  S.  R.  67,  69; 
Aultman  v.  Timm,  93  Ind.  158;  Allin  v.  Shadburne's  Ex'r,  1  Dana 
(Ky.)  68,  25  A.  D.  121;  Morris  v.  McClary,  43  Minn.  346;  Cozzens  v. 
Gillispie,  4  Mo.  82  (semble);  Jackson  v.  Goes,  13  Johns.  (N.  Y.)  518, 
7  A.  D.  399;  Brown  v.  Kimball,  25  Wend.  (N.  Y.)  259. 

When  evidence  in  rebuttal  is  adduced,  the  presumption  disappears. 
See  Jester  v.  Steiner,  86  Tex.  415. 

SST  Jones  v.  Jones,  9  Mees.  &  W.  75;  Sewell  v.  Evans,  4  Q.  B.  626, 
632;  Wilson  v.  Holt,  83  Ala.  528,  3  A.  S.  R.  768,  775.  See,  however, 
Flournoy  v.  Warden,  17  Mo.  435. 

ass  Mode  v.  Beasley,  143  Ind.  306,  332. 

889Sitler  v.  Gehr,  105  Pa.  577,  51  A.  R.  207;  Sailor  v.  Hertzogg,  2 
Pa.  182. 

«»o  Louden  v.  Walpole,  1  Ind.  319;  Bennett  v.  Libhart,  27  Mich.  489; 
Ambs  v.  C.,  St.  P.,  M.  &  O.  R.  Co.,  44  Minn.  266;  Fanning  v.  Lent,  3 
E.  D.  Smith  (N.  Y.)  206.  Contra,  Hunt  v.  Stewart,  7  Ala.  525;  Bogue 
v.  Bigelow,  29  Vt.  179. 

A  slight  difference  in  the  spelling  of  the  name  does  not  defeat  the 
presumption.  Gross  v.  Grossdale,  177  111.  248;  Mallory  v.  Riggs,  76 
Iowa,  748;  Rust  v.  Eckler,  41  N.  Y.  488,  492,  496;  Bogue  v.  Bigelow, 


196  LAW   OF   EVIDENCE.  §  49a 

If  father  and  son  bear  the  same  name,  the  inference  is  that 
that  name,  standing  alone,  refers  to  the  father,391  in  the  ab- 
sence of  evidence  to  the  contrary.892 

The  presumption  may  be  allowed  in  criminal  as  well  as  civil 
cases.393 

J.  INNOCENCE,  INTENT,  AND  MALICE. 

§  49.    Criminal  cases. 

(a)  Innocence.  If  a  person  is  charged  with  crime,  it  is  pre- 
sumed in  the  trial  that  he  is  innocent ;  and  this  presumption  op- 
erates to  throw  on  the  state  the  burden  of  proof,  in  the  sense  that 
if,  upon  a  consideration  of  the  entire  body  of  evidence  adduced 
in  the  trial,  the  jury  are  not  convinced  of  the  accused's  guilt, 
they  must  acquit  him.394  The  presumption  does  not  cease  to 
operate  upon  submission  of  the  case  to  the  jury,  but  contin- 
ues to  work  in  favor  of  the  accused  throughout  their  delibera- 
tions.395 Yet  it  is  not  in  itself  a  matter  of  evidence.  It  is 
not  a  thing  to  be  weighed  or  compared  by  the  jury  with  the 

29  Vt.  179.    Nor  does  the  absence  of  a  middle  initial.     Gross  v.  Gross- 
dale,  177  111.  248. 

A  finding  that  "R.  P.  O'Neil"  and  "Rev.  Patrick  O'Neil"  refer  to 
tae  same  person  is  not  justified,  in  the  absence  of  evidence  of  identity. 
Burford  v.  McCue,  53  Pa.  427. 

391  Sweeting  v.  Fowler,  1  Starkie,  106;  Graves  v.  Colwell,  90  111.  612. 
See  Lepiot  v.  Browne,  1  Salk.  7;  State  v.  Vittum,  9  N.  H.  519. 

A  deed  from  E.  G.  to  E.  G.,  Jr.,  is  presumed  to  be  from  father  to 
son.  Cross  v.  Martin,  46  Vt.  14. 

392  Stebbing  v.  Spicer,  8  Man.,  G.  &  S.  827,  8  C.  B.  827. 

393  Reg.  v.  Levy,   8  Cox  Cr.  Gas.  73;    People  v.  Rolfe,  61  Cal.  540; 
State  v.  McGuire,  87  Mo.  642;   State  v.  Kelsoe,  76  Mo.  505;    State  v. 
Moore,  61  Mo.  276.     See  State  v.  Vittum,  9'N.  H.  519. 

394  u.  S.  v.  Gooding,  12  Wheat.  (U.  S.)  460;  Hawes  v.  State,  88  Ala. 
37;   Brooke  v.  People,  23  Colo.  375;   People  v.  De  Fore,  64  Mich.  693, 
8  A.  S.  R.  863;  State  v.  Wilbourne,  87  N.  C.  529;  Johnson  v.  State,  30 
Tex.  App.  419,  28  A.  S.  R.  930;  8  Current  Law,  206. 

395  people  v.  O'Brien,  106  Cal.  104;  Reeves  v.  State,  29  Fla.  527. 


§  49a  INNOCENCE,    INTENT,    MALICE.  197 

evidence  adduced  by  the  state.     Its  sole  effect  is  to  fix  on 
the  state  the  burden  of  proof.896 

Since  the  effect  of  the  presumption  is  simply  to  fix  the 
burden  of  proof,  and  since  the  burden  of  proof  operates  solely 
in  the  trial,  it  follows  that  the  presumption  has  no  operation 
elsewhere.  It  does  not  apply,  for  instance,  in  applications  for 
bail  in  capital  cases.  The  indictment  for  a  capital  offense  is 
held  to  furnish  a  presumption  of  guilt,  which  the  prisoner 
must  overcome  before  he  is  entitled  to  release  on-  bail,897  and 
in  some  states  this  presumption  of  guilt  may  not  be  rebutted,398 
except  under  extraordinary  circumstances.399 

In  stating  this  presumption  it  is  usually  said  that  it  requires 
the  state  to  prove  guilt  beyond  a  reasonable  doubt.     This, 
however,  is  a  supplementary  proposition  as  to  the  amount  or 
weight  of  evidence  which  is  required  to  overcome  the  pre- 
sumption,400   and   it    is   accordingly   elsewhere    considered.401 
As  in  civil  cases,  the  burden  ^f  proof,  in  the  sense  of  bur- 
si*  Thayer,  Prel.  Treat.  Ev.  337,  551.    See  §  17  (b),  supra. 
397  Ex  parte  White,  9  Ark.  222;  Ex  parte  Kendall,  100  Ind.  599;   Ex 
parte  Goans,  99  Mo.  193,  17  A.  S.  R.  571.    And  see  Ex  parte  Ryan,  44 
Cal.  555;    Ex  parte  Duncan,  53  Cal.  410.     Contra,  Ex  parte  Newman, 
38  Tex.  Cr.  App.  165,  70  A.  S.  R.  740. 

The  same  rule  applies  on  application  for  a  writ  of  habeas  corpus 
by  one  held  under  a  commitment.  State  v.  Jones,  113  N.  C.  669,  22 
L.  R.  A.  678. 

»»8U.  S.  v.  Jones,  3  Wash.  C.  C.  224,  Fed.  Cas.  No.  15,495;  Hight 
v.  U.  S.,  Morris  (Iowa)  407,  43  A.  D.  Ill;  Ter.  v.  Benoit,  1  Mart.  (La.) 
142;  State  v.  Brewster,  35  La.  Ann.  605;  People  v.  McLeod,  1  Hill  (N. 
Y.)  377,  25  Wend.  483,  37  A.  D.  328.  Contra,  Ex  parte  Acree,  63  Ala. 
234;  Ex  parte  Wolff,  57  Cal.  94;  Lynch  v.  People,  38  111.  494;  Lumm 
v.  State,  3  Ind.  293;  Ex  parte  Hock,  68  Ind.  206;  Street  v.  State,  43  Miss. 
1;  State  v.  Hill,  3  Brev.  (S*.  C.)  89. 

»»»  People  v.  Tinder,  19  Cal.  539,  81  A.  D.  77. 

400  Thayer,  Prel.  Treat.  Ev.  558. 

401  Section  6  (a),  supra. 


198  LAW  OF   EVIDENCE.  §  49b 

den  of  convincing  the  jury  of  guilt,  never  shifts  in  the  trial.402 
If,  however,  the  state  adduces  evidence  which  makes  a  prima 
facie  case  of  guilt,  then  the  necessity  of  adducing  evidence 
in  denial  or  in  rebuttal  devolves  on  the  accused.  If  he  fails 
thus  to  go  forward  with  the  evidence,  he  is  not  entitled  to  an 
acquittal.403  If,  on  the  other  hand,  he  discharges  the  burden 
of  adduction,  and  adduces  evidence  which  makes  a  prima 
facie  defense,  then  that  burden  shifts  back  to  the  state,  and 
it  must  adduce  evidence  in  denial  or  avoidance  of  the  ac- 
cused's prima  facie  case.404 

(b)  Intent  and  malice.  A  prima  facie  case  of  guilt  which, 
in  the  absence  of  evidence  in  denial  or  in  rebuttal,  requires 
a  conviction,  may  consist  in  part  of  a  presumption.405  Two 
familiar  instances  are  the  presumptions  of  criminal  intent  and 
of  malice. 

Every  man  of  legal  capacity  is  presumed  to  contemplate 
the  natural  and  probable  consequences  of  acts  done  by  him 
voluntarily  and  without  mistake  as  to  the  facts.  Consequent- 
ly, if  the  commission  of  an  act  otherwise  criminal  is  proved, 
this  presumption  operates  to  relieve  the  prosecution  of  the" 
necessity  resting  on  it  in  the  first  instance  of  adducing  evi- 

402  state  v.  Crawford,  11  Kan.  32,  45;  People  v.  McWhorter,  93  Mich. 
641;  State  v.  Wingo,  66  Mo.  181,  27  A.  R.  329;  Com.  v.  Gerade,  145  Pa. 
289,  27  A.  S.  R.  689;    Phillips  v.  State,  26  Tex.  App.  228,  8  A.  S.  R. 
471;   Horn  v.  State,  30  Tex.  App.  541.     Shifting  of  burden  of  proof  in 
civil  cases,  see  §§  2,  4(b),  supra. 

This  is  true  in  most  states,  even  where  the  accused  pleads  justifica- 
tion or  excuse.  Section  49  (c),  infra.  It  is  likewise  true  even  where 
the  circumstances  proved  by  the  state  are  such  as  to  give  rise  to  a  pre- 
sumption of  criminal  intent  or  malice.  Page  201,  infra. 

403  Prima  facie  case  consisting  of  presumption,  see  §  49 (b),  infra. 

404  Brown  v.  State,  83  Ala.  33,  3  A.  S.  R?  685;   Gibson  v.  State,  89 
Ala.  121,  18  A.  S.  R.  96;  Angelo  v.  People,  96  111.  209,  36  A.  R.  132. 

405  state  v.  Lee,  69  Conn.  186;  State  v.  Ingram,  16  Kan.  14;   State  v. 
Wingo,  66  Mo.  181,  27  A.  R.  329;    Com.  v.  Gerade,  145  Pa.  289,  27  A. 
S.  R.  689.     This  is  true  of  the  presumption  of  sanity.    Section  86,  infra. 


§  49b  INNOCENCE,    INTENT,    MALICE.  199 

dence  of  an  actual  criminal  intent  on  the  part  of  the  accused.40* 
Thus,  an  intent  to  murder  is  presumed  from  the  deliberate  use 
of  a  deadly  weapon.407 

In  like  manner,  malice  is  sometimes  presumed  from  the 
commission  of  an  act  otherwise  criminal  in  character,  and 
the  state  is  thereby  relieved  of  the  necessity  resting  on  it  in 
the  first  instance  of  adducing  evidence  of  actual  malice.408 
Thus,  evidence  of  an  intentional  homicide,  unaccompanied  by 
circumstances  of  justification  or  excuse,  gives  rise  to  a  pre- 
sumption that  the  killing  was  done  in  malice.409 

*06  Clark  &  M.  Crimes  (2d  Ed.)  §  58;  Rex  v.  Farrington,  Russ.  &  R. 
07;  Rex  v.  Dixon,  3  Maule  &  S.  11;  Allen  v.  U.  S.,  164  U.  S.  492;  Agnewv. 
U.  S.,  165  U.  S.  36;  Howard  v.  State,  34  Ark.  433;  People  v.  Ah  Gee 
Yung,  86  Cal.  144;  People  v.  Brown,  59  Cal.  345,  352;  Spies  v.  People, 
122  111.  1,  3  A.  S.  R.  320,  440;  Com.  v.  York,  9  Mete.  (Mass.)  93,  43 
A.  D.  373;  State  v.  Mason,  26  Or.  273,  46  A.  S.  R.  629;  State  v.  Levelle, 
34  S.  C.  120,  27  A.  S.  R.  799;  High  v.  State,  26  Tex.  App.  545,  8  A.  S.  R. 
488  (statute);  Hill  v.  Com.,  2  Grat.  (Va.)  594.  Contra,  Lane  v.  State, 
85  Ala.  11;  People  v.  Flack,  125  N.  Y.  324,  11  L.  R.  A.  807. 

In  some  crimes,  a  specific  intent  is  an  essential  ingredient,  and 
here  it  will  not  be  conclusively  presumed.  Clark  &  M.  Crimes  (2d  Ed.) 
§  63. 

*<"  Clark  &  M.  Crimes  (2d  Ed.)  §  58;  Oliver  v.  State,  17  Ala.  587,  601; 
People  v.  Hunt,  59  Cal.  430;  People  v.  Bush  ton,  80  Cal.  160;  State  v.  Gil- 
lick,  7  loVa,  287;  Com.  v.  Webster,  5  Cush.  (Mass.)  295,  52  A.  D.  711; 
People  v.  Wolf,  95  Mich.  625;  Com.  v.  Drum,  58  Pa.  9;  State  v.  Smith, 
2  Strob.  (S.  C.)  77,  47  A.  D.  589. 

An  assault  made  with  a  deadly  weapon  does  not  raise  a  presump- 
tion of  an  intent  to  kill,  where  death  did  not  result.  Clark  &  M.  Crimes 
(2d  Ed.)  §  63;  People  v.  Mize,'  80  Cal.  41;  Patterson  v.  State,  85  Ga. 
131,  21  A.  S.  R.  152;  'Gilbert  v.  State,  90  Ga.  691;  Maher  ^v.  People, 
10  Mich.  212,  81  A.  D.  781;  Roberts  v.  People,  19  Mich.  40l';  State  v. 
Hickam,  95  Mo.  322,  6  A.  S.  R.  54.  Contra,  Smith  v.  State,  88  Ala.  23; 
Lane  v.  State,  85  Ala.  11;  Wood  v.  State,  27  Tex.  App.  393  (statute). 
And  see  Hall  v.  State,  9  Fla.  203,  76  A.  D.  617. 

«>»  Clark  &  M.  Crimes  (2d  Ed.)  §  62;  Hogan  v.  State,  61  Ga.  43;  State 
v.  Hessenkamp,  17  Iowa,  25;.  Conner  v.  State,  4  Yerg.  (Tenn.)  137,  26 
A.  D.  217. 

409  ENGLAND:     Morly's  Case,  J.  Kelyng,  53,  Thayer,  Cas.  Ev.  44. 

ALABAMA:     Gibson  v.  State,  89  Ala.  121,  18  A.  S.  R.  96. 


200  LAW  OF   EVroEiNCE.  §  49b 

The  intent  is  sometimes  referred  by  law  to  a  different  act 
from  the  one  which  the  accused  had  in  mind,410  as  where  he 
kills  or  injures  one  man  in  the  attempt  to  kill  or  injure  an- 
other. Here  the  intent  is  presumed  to  have  existed  with  ref- 
erence to  the  thing  actually  done.411  And  the  same  is  true  of 

CALIFORNIA:     People  v.  March,  6  Cal.  543. 

GEOBGIA:  Marshall  v.  State,  74  Ga.  26;  Collier  v.  State,  39  Ga.  31, 
99  A.  D.  449;  Clarke  v.  State,  35  Ga.  75. 

ILLINOIS:  Murphy  v.  People,  37  111.  447;  Spies  v.  People,  122  111.  1, 
3  A.  S.  R.  320,  398. 

MAINE:     State  v.  Knight,  43  Me.  11. 

MASSACHUSETTS:  Com.  v.  Drew,  4  Mass.  391,  395;  Com.  v.  York,  9 
Mete.  93,  43  A.  D.  373;  Com.  v.  Webster,  5  Gush.  295,  52  A.  D.  711. 

MINNESOTA:     State  v.  Brown,  41  Minn.  319. 

MISSISSIPPI:  McDaniel  v.  State,  8  Smedes  &  M.  401,  47  A.  D.  93; 
Green  v.  State,  28  Miss.  687.  • 

NEBRASKA:     Schlencker  v.  State,  9  Neb.  241. 

NOETH  CABOLINA:  State  v.  Hildreth,  31  N.  C.  (9  Ired.)  429,  51  A. 
D.  364. 

PENNSYLVANIA:     Pa.  v.  Bell,  Add.  156,  1  A.  D.  298. 

TENNESSEE:  Coffee  v.  State,  3  Yerg.  283,  24  A.  D.  570;  Mitchell  v. 
State,  5  Yerg.  340,  350;  Epperson  v.  State,  5  Lea,  291. 

TEXAS:  Brown  v.  State,  4  Tex.  App.  275;  Martinez  v.  State,  30  Tex. 
App.  129,  28  A.  S.  R.  895. 

VIRGINIA:     McWhirt's  Case,  3  Grat.  594,  46  A.  D.  196. 

Contra,  U.  S.  v.  Armstrong,  2  Curt.  446,  Fed.  Gas.  No.  14,467;  Farris 
v.  Com.,  14  Bush  (Ky.)  362;  State  v.  Trivas,  32  La.  Ann.  1086,  36  A.  R. 
293;  Goodall  v.  State,  1  Or.  333,  80  A.  D.  396  (statute). 

Malice  may  be  inferred  from  the  use  of  a  deadly  weapon,  causing 
death.  Brown  v.  State,  83  Ala.  33,  3  A.  S.  R.  685;  State  v.  Gillick,  7  Iowa, 
287;  State  v.  Deschamps,  42  La.  Ann.  567,  21  A.  S.  R.  392;  State  v. 
Mitchell,  64  Mo.  191;  Thomas  v.  People,  67  N.  Y.  218;  State  v.  Whitson, 
111  N.  C.  695;  State  v.  Potts,  100  N.  C.  457;  State  v.  Bertrand,  3  Or. 
61;  Com.  v.  Drum,  58  Pa.  9;  State  v.  Levelle,  34  S.  C.  120,  27  A.  S. 
R.  799;.  State  v.  McDonnell,  32  Vt.  491. 

410  For  illustrations,  see  Clark  &  M.  Crimes  (2d  Ed.)    §  59.     For  ex- 
ceptions to  the  rule,  see  Id.  §  59 (e). 

411  Reg.  v.  Smith,  33  Eng.  Law  &  Eq.  567,  1  Dears.  Cr.  Gas.  559;  Gol- 
liher  v.  Com.,  2  Duv.  (Ky.)  163,  87  A.  D.  493;  State  v.  Benton,  19  N.  C. 
(2  Dev.  &  B.)  196;  Angell  v.  State,  36  Tex.  542,  14  A.  R.  380.     Contra, 
Bratton  v.  State,  10  Humph.   (Tenn.)   103   (statute). 


§  49b  INNOCENCE,    INTENT,    MALICE.  201 

malice.  If,  in  the  attempt  to  commit  one  offense,  he  commits 
another,  malice  is  presumed  with  reference  to  the  latter.412 

The  presumptions  of  criminal  intent  and  malice  are  con- 
clusive in  the  sense  that,  in  the  absence  of  justification  or  ex- 
cuse, the  nonexistence  either  of  an  actual  criminal  intent  or 
actual  malice  is  immaterial,  and  cannot  be  shown  ;413  but  they 
are  disputable  so  far  as  to  allow  the  accused  to  overcome  them 
by  adducing  evidence  of  facts  which  in  law  excuse  or  justify 
the  act  for  which  he  is  on  trial.414  And  when  evidence  in  re- 
buttal is  thus  adduced,  the  question  of  malice  or  intent  becomes 
one  for  the  jury  upon  all  the  evidence,  regardless  of  any  pre- 
sumption.415 

By  proving  the  facts  on  which  either  of  these  presumptions 
is  founded,  the  state  therefore  makes  a  prima  facie  case  of 
criminal  intent  or  malice,  as  the  case  may  be,  and  this  pre- 
sumption, coupled  with  evidence  of  the  other  elements  of  the 
crime  in  question,  makes  a  prima  facie  case  of  guilt.  And 
while  the  burden  of  proof,  in  the  proper  sense  of  the  term, 
does  not  shift  to  the  accused  in  this  event,416  yet  there  shifts 

412  State  v.  Moore,  25  Iowa,  128,  95  A.  D.  776;  State  v.  Smith,  2 
Strob.  (S.  C.)  77,  47  A.  D.  589.  . 

*i8  Reg.  v.  Hill,  2  Moody,  Cr.  Gas.  30;  State  v.  Patterson,  116  Mo. 
505.  And  see  Rex  v.  Sheppard,  Russ.  &  R.  169. 

«4  Brown  v.  State,  83  Ala.  33,  3  A.  S.  R.  685;  Murphy  v.  People,  37 
111.  447;  State  v.  Knight,  43  Me.  11;  Com.  v.  Webster,  5  Cush.  (Mass.) 
295,  52  A.  D.  711;  State  v.  Hildreth,  31  N.  C.  (9  Ired.)  429,  51  A.  D. 
364;  Silvus  v.  State,  .22  Ohio  St.  90,  100;  State  v.  Bertrand,  3  Or.  61; 
Pa.  v.  Bell,  Add.  (Pa.)  156,  1  A.  D.  298;  State  v.  Levelle,  34  S.  C. 
120,  27  A.  S.  R.  799;  McWhirt's  Case,  3  Grat.  (Va.)  594,  46  A.  D.  196. 

Burden  of  proof  generally  as  to  justification,  see  §  49 (c),  infra. 

415  See  cases  cited  in  note  418,  infra. 

4ie  People  v.  Boling,  83  Cal.  380;  Maher  v.  People,  10  Mich.  212,  81 
A.  D.  781;  People  v.  Garbutt,  17  Mich.  9,  97  A.  D.  162,  168;  Hawthorne 
v.  State,  58  Miss.  778;  State  v.  Hickam,  95  Mo.  322,  6  A.  S.  R.  54;  Ter. 
v.  Lucero,  8  N.  M.  543;  Tiffany  v.  Com.,  121  Pa.  165,  6  A.  S.  R.  775; 
Trumble  v.  Ter.,  3  Wyo.  280,  6  L.  R.  A.  384.  Contra,  State  v.  Whit- 
son,  111  N.  C.  695;  State  v.  Bertrand,  3  Or.  61. 


202  LAW  OF  EVIDENCE.  §  49c 

upon  him  the  burden  of  adducing  evidence  to  overcome  the 
prima  facie  case  thus  made  against  him,417  unless  evidence 
inconsistent  with  the  presumption  has  been  adduced  by  the 
state  in  proving  the  circumstances  of  the  alleged  crime,  in 
which  event  no  presumption  arises,  and  the  accused  is  entitled 
to  go  to  the  jury  on  his  defense  without  adducing  further  evi- 
dence.418 

» 

(c)  Justification  and  excuse.  In  civil  cases,  it  has  been  seen, 
the  burden  of  proving  a  defense  by  way  of  confession  and 
avoidance  rests  on  the  defendant,  in  the  sense  that  if  the  jury, 
upon  a  consideration  'of  the  entire  body  of  evidence  adduced 
in  the  trial,  are  not  convinced  of  the  truth  of  the  defense, 
they  must  find  for  the  plaintiff.419  In  some  states  the  same 
rule  is  applied  in  criminal  cases,  so  that,  if  the  accused  admits 
the  doing  of  an  act  prima  facie  criminal  in  character,  and  al- 
leges an  excuse  or  justification,  the  burden  of  establishing 
this  defense  in  the  minds  of  the  jury  rests  upon  him,  and  he 
is  not  entitled  to  an  acquittal  merely  because  the  evidence 
creates  a  reasonable  doubt  of  his  guilt.420  An  alibi  is  not  an 

417  Gibson  v.  State,  89  Ala.  121,  18  A.  S.  R.  96;  People  v.  Garbutt,  17 
Mieh.  9,  97  A.  D.  162,  169;  State  v.  Wingo,  66  Mo.  181,  27  A.  R.  329. 

«8  Com.  v.  Webster,  5  Gush.  (Mass.)  295,  52  A.  D.  711;  Com.  v. 
Hawkins,  3  Gray  (Mass.)  463;  Lamar  v.  State,  63  Miss.  265;  Haw- 
thorne v.  State,  58  Miss.  778;  State  v.  Dierberger,  96  Mo.  666,  9  A.  S. 
R.  380;  Ter.  v.  Lucero,  8  N.  M.  543;  Trumble  v.  Ter.,  3  Wyo.  280,  6 
L.  R.  A.  384. 

4io  Section  8,  supra. 

420  Lewis  v.  State,  88  Ala.  11  (semble) ;  People  v.  Schryver,  42  N. 
Y.  1,  1  A.  R.  480;  State  v.  Byrd,  121  N.  C.  684;  State  v.  Whitson,  111 
N.  C.  695;  State  v.  Barringer,  114  N.  C.  840;  State  v.  Bertrand,  3  Or. 
61;  State  v.  Jones,  20  W.  Va.  764.  See,  also,  Boulden  v.  State,  102 
Ala.  78;  Roden  v.  State,  97  Ala.  54;  Stitt  v.  State,  91  Ala.  10,  24  A. 
S.  R.  853;  Mitchell  v.  State,  22  Ga.  211,  68  A.  D.  493;  Appleton  v.  Peo- 
ple, 171  111.  473  (statute) ;  People  v.  McCarthy,  110  N.  Y.  309. 

This  seems  formerly  to  have  been   the  rule  in  California    (People 


I  49C  INNOCENCE,    INTENT,    MALJCE.  20& 

affirmative  defense,  within  the  meaning  of  this  rule,  since  ita 
tendency  is  not  to  confess  and  avoid,  but  simply  to  deny. 
Accordingly,  the  burden  does  not  rest  on  the  accused  to  es- 
tablish an  alibi,  either  beyond  a  reasonable  doubt  or  by  a 
preponderance  of  the  evidence.  On  the  contrary,  the  burden 
is  on  the  state  to  show  the  accused's  presence  at  the  crime; 
and  unless  the  jury,  upon  considering  the  entire  body  of  evi- 
dence, are  convinced  of  the  accused's  guilt  beyond  a  reason- 
able doubt,  they  must  acquit  him.421 

v.  Milgate,  5  Cal.  127),  but  no  longer.  See  cases  cited  in  note  422, 
infra. 

In  State  v.  Schweitzer,  57  Conn.  532,  6  L.  R.  A.  125,  it  is  said  that, 
while  the  accused  is  entitled  to  an  acquittal  if  the  jury  have  a  reason- 
able doubt  of  his  guilt,  yet  he  must  prove  an  affirmative  defense  by  a 
preponderance  of  the  evidence.  These  positions  seem  to  conflict. 

421  ALABAMA:  Prince  v.  State,  100  Ala.  144,  46  A.  S.  R.  28;  Pickens  v.. 
State,  115  Ala.  42. 

ARIZONA:     Schultz  v.  Ter.,  52  Pac.  352. 

CALIFORNIA:     People  v.  Fong  Ah  Sing,  64  Cal.  253. 

COLORADO:     McNamara  v.  People,  24  Colo.  61. 

FLORIDA:     Murphy  v.  State,  31  Fla.  166. 

ILLINOIS:  Miller  v.  People,  39  111.  457;  Ackerson  v.  People,  124  111. 
563;  Carlton  v.  People,  150  111.  181,  41  A.  S.  R.  346,  352  (semble). 

INDIANA:  Howard  v.  State,  50  Ind.  190;  Kaufman  v.  State,  49  Ind. 
248;  French  v.  State,  12  Ind.  670,  74  A.  D.  229. 

IOWA:     State  v.  Hardin,  46  Iowa,  623,  26  A.  R.  174  (semble). 

LOUISIANA:     State  v.  Ardoin,  49  La.  Ann.  1145,  62  A.  S.  R.  678. 

MASSACHUSETTS:     Com.  v.  Choate,  105  Mass.  451. 

MICHIGAN:     People  v.  Pearsall,  50  Mich.  233   (semble). 

MISSISSIPPI:     Pollard  v.  State,  53  Miss.  410,  24  A.  R.  703. 

MISSOURI:  State  v.'  Howell,  100  Mo.  628;  State  v.  Harvey,  131  Mo. 
339. 

NEBRASKA:     Peyton  v.  State,  54  Neb.  188. 

NEW  YORK:     People  v.  Stone,  117  N.  Y.  480.  * 

NORTH  CAROLINA:     State  v.  Josey,  64  N.  C.  56. 

OHIO:     Walters  v.  State,  39  Ohio  St.  215. 

OKLAHOMA:     Wright  v.  Ter.,  5  Okl.  78. 

OREGON:     State  v.  Ghee  Gong,  16  Or.  534. 

PENNSYLVANIA:  Turner  v.  Com.,  86  Pa.  54,  27  A.  R.  683;  Watson  v. 
Com.,  95  Pa.  418. 


204  LAW  OF  EVIDENCE.  §  49C 

By  the  weight  of  authority,  however,  the  accused  is  more 
favored  when  he  alleges  justification  or  excuse.  These  de- 
fenses, while  in  the  nature  of  pleas  in  confession  and  avoid- 
ance, do  not  relieve  the  state  from  the  burden  of  proof,  in 
the  proper  sense  of  the  term,  and  cast  it  on  the  accused.  He 
is  not  required  to  establish  the  defense  by  a  preponderance 
of  the  evidence, — much  less  beyond  a  reasonable  doubt.  On 
the  contrary,  if  the  jury,  upon  a  consideration  of  the  entire 
body  of  evidence  adduced  in  the  trial,  entertain  a  reasonable 
doubt  of  the  accused's  guilt,  he  is  entitled  to  an  acquittal.422 
This  rule  results  from  the  strictness  with  which  criminal  pro- 
ceedings are  regarded  by  the  common  law,  and  doubtless,  also, 
from  the  fact  that  in  criminal  cases  an  affirmative  defense 
need  not  be  specially  pleaded  in  order  to  be  proved.423  Even 

SOUTH  DAKOTA:     State  v.  Thornton,  10  S.  D.  349,  41  L.  R.  A.  530. 

TENNESSEE:     Chappel  v.  State,  7  Cold.  92. 

TEXAS:  Ayres  v.  State,  21  Tex.  App.  399;  Horn  v.  State,  30  Tex. 
App.  541. 

VIRGINIA:     Thompson  v.  Com.,  88  Va.  45   (semble). 

Contra,  State  v.  Sutton,  70  Iowa,  268,  270  (semble);  State  v.  Reed, 
62  Iowa,  40,  41  (semble);  State  v.  Jackson,  36  S.  C.  487,  31  A.  S.  R. 
S90. 

In  some  cases  it  is  said  that,  while  the  burden  of  proving  an  alibi 
to  the  satisfaction  of  the  jury  rests  on  the  accused,  yet  he  is  entitled 
to  an  acquittal  if  his  evidence  raises  a  reasonable  doubt  of  his  guilt. 
These  positions  seem  to  be  in  conflict.  Rudy  v.  Com.,  128  Pa.  500; 
State  v.  Ward,  61  Vt.  153,  192. 

422  people  v.  Bushton,  80  Cal.  160;  People  v.  Ah  Gee  Yung,  86  Cal. 
144;  People  v.  Elliott,  80  Cal.  296;  People  v.  Lanagan,  81  Cal.  142; 
State  v.  Donahoe,  78  Iowa,  486;  State  v.  Shea,  104  Iowa,  724;  Com.  v. 
McKie,  I  Gray  (Mass.)  61,  61  A.  D.  410;  People  v.  Coughlin,  65  Mich. 
704;  King  v.  State,  74  Miss.  576;  State  v.  Wingo,  66  Mo.  181,  27  A.  R. 
329;  Gravely  v.  State,  38  Neb.  871;  State  v.  McCluer,  5  Nev.  132;  Peo- 
ple v.  Riordan,  117  N.  Y.  71;  People  v.  Downs,  123  N.  Y.  558,  Thayer, 
Cas.  Ev.  87;  State  v.  Neal,  120  N.  C.  613,  58  A.  S.  R.  810.  See  State 
v.  Schweitzer,  57  Conn.  532,  6  L.  R.  A.  125,  criticised  in  note  420, 
supra. 

423In  civil  cases,  the  issue  is  ordinarily  fixed  by  the  pleadings  before 


§  50a  INNOCENCE,    INTENT,    MALICE.  205 

where  this  rule  prevails,  however,  the  burden  of  adducing  evi- 
dence in  support  of  the  defense  in  the  first  instance  rests,  it 
seems,  on  the  accused,  and,  if  he  does  not  go  forward  with  the 
evidence  in  discharge  of  this  burden,  he  is  not  entitled  to  an 
acquittal.424 

The  burden  of  adducing  evidence  in  support  of  a  defense 
of  excuse  or  justification  thus  rests  on  the  accused  only 
where  the  state,  in  proving  the  criminal  act  in  question,  ad- 
duces no  evidence  which  tends  to  support  that  defense.  If 
such  evidence  appears  in  the  state's  case,  the  accused  is  en- 
titled to  go  to  the  jury  without  adducing  further  evidence.425 

§  50.    Civil  cases. 

(a)  Innocence.  The  presumption  of  innocence  applies  in 
civil  cases  wherein  a  crime  is  charged,  as  well  as  in  criminal 

trial.  In  criminal  cases  the  issue  is  not  finally  fixed  until  the  ac- 
cused has  either  interposed  an  affirmative  defense  in  the  trial  or  passed 
by  his  opportunity  of  doing  so.  A  defense  consisting  of  facts  in  ex- 
cuse or  justification  is  none  the  less  affirmative,  however,  because  the 
law  allows  it  to  be  proved  without  a  special  pleading.  The  absence 
of  such  a  pleading  does  not  change  the  issue;  it  operates  merely  to 
delay  the  fixing  of  the  issue.  The  fact,  therefore,  that  an  affirmative 
defense  need  not  be  specially  pleaded  in  criminal  cases,  should  not  in 
reason  operate  to  leave  the  burden  of  negativing  it  on  the  state,  but, 
on  the  contrary,  the  accused  ought  to  bear  the  burden  of  establish- 
ing it.  See  note  3,  supra. 

424  See  Boulden  v.  State,  102  Ala.  78;  Roden  v.  State,  97  Ala.  54; 
Stitt  v.  State,  91  Ala.  10,  24  A.  S.  R.  853;  Gibson  v.  State,  89  Ala.  121, 
18  A.  S.  R.  96;  Brown  v.  State,  83  Ala.  33,  3  A.  S.  R.  685;  Mitchell  v. 
State,  22  Ga.  211,  68  A.  D.  493;  Appleton  v.  People,  171  111.  473;  Peo- 
ple v.  McCarthy,  110  N.  Y.  309. 

It  is  otherwise  by  statute  in  murder  cases  in  Oregon.  Goodall  v. 
State,  1  Or.  333,  80  A.  D.  396. 

«5  Gibson  v.  State,  89  Ala.  121,  18  A.  S.  R.  96;  People  v.  Schryver, 
42  N.  Y.  1,  1  A.  R.  480;  State  v.  Patterson,  45  Vt.  308,  12  A.  R.  200. 
See,  also,  page  202,  supra. 


206  LAW   OF   EVIDENCE.  §  5Qb 

prosecutions.426  Thus  it  throws  on  the  defendant  in  an  action 
for  libel  the  burden  of  proving  the  truth  of  a  publication  char- 
ging the  plaintiff  with  crime.427 

(b)  Intent.  Every  man  of  legal  capacity  is  presumed  to  con- 
template the  natural  and  probable  consequences  of  acts  done 
by  him  voluntarily  and  without  mistake  as  to  the  facts.428  An 

426  Williams  v.  East  India  Co.,  3  East,  192;   Lilienthal's  Tobacco  v. 
U.  S.,  97  U.  S.  237,  266. 

It  is  presumed,  in  the  absence  of  evidence  to  the  contrary,  that  a 
person's  character  is  good.  Broughton  v.  McGrew,  39  Fed.  672,  5  L. 
R.  A.  406;  Goggans  v.  Monroe,  31  Ga.  331;  Gaul  v.  Fleming,  10  Ind.  253, 
255. 

As  to  whether  a  party  charging  crime  in  a  civil  action  must  prove 
it  beyond  a  reasonable  doubt,  or  whether  a  preponderance  of  the  ev^i- 
dence  is  sufficient,  see  page  25,  supra. 

The  presumption  of  innocence  is  contained  in  the  maxims,  Injuria 
non  praesumitur,  and  Odiosa  non  praesumuntur. 

The  presumption  of  innocence  is  closely  allied  with  various  other 
presumptions  considered  in  this  chapter.  Presumption  as  to  Altera- 
tion of  instrument,  see  §  30 (f),  supra.  Presumption  as  to  fraud, 
duress,  and  undue  influence,  see  §§  43-45,  supra.  Presumption  of  legal- 
ity, see  §§  55-58,  infra.  Presumption  of  legitimacy,  see  §§  59,  60, 
infra.  Presumptions  as  to  negligence,  see  §§  65-69,  infra. 

427  Ellis  v.  Buzzell,  60  Me.  209,  11  A.  R.  204;   Conroy'v.  Pittsburgh 
Times,  139  Pa.  334,  23  A.  S.  R.  188. 

428Keyser  v.  Rice,  47  Md.  203,  28  A.  R.  448;  Lucke  v.  Clothing  C.  & 
T.  Assembly,  77  Md.  396,  39  A.  S.  R.  421;  Allison  v.  Chandler,  11  Mich. 
542;  Nichols  v.  Nichols,  61  Vt.  426;  Timm  v.  Bear,  29  Wis.  254. 

Preferences — Intent  to  defraud.  Clarion  Bank  v.  Jones,  21  Wall. 
(U.  S.)  335,  337;  Denny  v.  Dana,  2  Cush.  (Mass.)  160,  48  A.  D.  655; 
Hazen  v.  Lyndonville  Nat.  Bank,  70  Vt.  543,  67  A.  S.  R.  680.  See, 
however,  Nicol  v.  Crittenden,  55  Ga.  497;  Sackett  v.  Mansfield,  26  111. 
21,  27. 

Trademarks — Intent  to  deceive.  Holmes  v.  Holmes,  B.  &  A.  M.  Co., 
37  Conn.  278,  9  A.  R.  324,  330;  El  Modello  C.  M.  Co.  v.  Gato,  25  Fla. 
886,  23  A.  S.  R.  537;  Keller  v.  Goodrich  Co.,  117  Ind.  556,  10  A.  S.  R. 
88;  Kenny  v.  Gillet,  70  Md.  574. 

The  same  rule  applies  to  a  legislative  act.  Whenever  and  to  the  ex- 
tent that  the  legislature  of  a  state  transcends  its  constitutional  powers, 
it  is  conclusively  presumed  that  it  intended  so  to  transcend  them,  and 


§   50c  INNOCENCE,    INTENT,    MALICE.  207 

illustration  is  found  in  cases  of  fraud.  In  order  to  constitute 
fraud,  a  false  representation  must  be  made  with  the  intention 
that  it  shall  be  acted  upon  by  some  one  to  his  injury, — an 
intention  to  deceive  must  exist;  and  if  a  man  knows,  either 
directly  or  inferentially,  that  his  representations  are  untrue, 
it  is  presumed  that  he  entertained  an  intention  to  defraud 
the  other  party.429 

(c)  Malice.  In  some  circumstances  an  act  is  presumed 
to  have  been  done  in  malice.  Thus,  the  intentional  publica- 
tion of  unprivileged  defamatory  matter  concerning  another 
raises  a  presumption  of  malice,  and  accordingly,  in  an  action 
for  slander  or  libel,  the  plaintiff  need  not  prove  malice  in 
fact.430  If  the  communication  is  privileged,  however,  this  pre- 

extrinsic  evidence  of  good  motives  or  other  considerations  is  not  ad- 
missible to  save  the  act.  State  v.  Cunningham,  83  Wis.  90,  35  A.  S. 
R.  27. 

«9Hammon,  Cont.  §  119;  Ormrod  v.  Huth,  14  Mees.  &  W.  651;  Ends- 
ley  v.  Johns,  120  111.  469,  60  A.  R.  572;  Buschman  v.  Codd,  52  Md.  202; 
Nash  v.  M.  T.  I.  &  T.  Co.,  163  Mass.  574,  47  A.  S.  R.  489;  Humphrey 
v.  Merriam,  32  Minn.  197;  Clopton  v.  Cozart,  13  Smedes  &  M.  (Miss.) 
363;  Eibel  v.  Von  Fell,  63  N.  J.  Law,  3;  Mclntyre  v.  Buell,  132  N.  Y. 
192;  Stafford  v.  Newsom,  31  N.  C.  (9  Ired.)  507;  Butterfield  v.  Barber, 
20  R.  I.  99;  Boyd's  Ex'rs  v.  Browne,  6  Pa.  310. 

430  ENGLAND:     Haire  v.  Wilson,  9  Barn.  &  C.  643. 

UNITED  STATES:  Union  M.  L.  Ins.  Co.  v.  Thomas,  83  Fed.  803; 
Broughton  v.  McGrew,  39  Fed.  672,  5  L.  R.  A.  406. 

CALIFOBNIA:  Childers  v.  San  Jose  M.  P.  &  P.  Co.,  105  Cal.  284,  45  A. 
S.  R.  40. 

INDIANA:  Byrket  v..  Monohon,  7  Blackf.  83,  41  A.  D.  212;  Gaul  v. 
Fleming,  10  Ind.  253. 

KENTUCKY:     Riley  v.  Lee,  88  Ky.  603,  21  A.  S.  R.  358. 

LOUISIANA:     Weil  v.  Israel,  42  La.  Ann.  955. 

MASSACHUSETTS:     Bodwell  v.  Osgood,  3  Pick.  379,  15  A.  D.  228. 

MICHIGAN:  Bell  v.  Fernald,  71  Mich.  267;  Davis  v.  Marxhausen,  103 
Mich.  315. 

MISSOURI:  Mitchell  v.  Bradstreet  Co.,  116  Mo.  226,  38  A.  S.  R.  592; 
St.  James  Military  Academy  v.  Gaiser,  125  Mo.  517,  46  A.  S.  R.  502. 

NEW  YORK:  Byam  v.  Collins,  111  N.  Y.  143,  7  A.  S.  R.  726;  King  v. 
Root,  4  Wend.  113,  21  A.  D.  102. 


208  LAW   OF   EVIDENCE.  §   50c 

sumption  does  not  arise.431  If  the  privilege  is  absolute,  the 
defendant  is  justified,  without  regard  to  whether  or  not  he 
acted  maliciously.  If  the  privilege  is  qualified,  proof  of  actual 
malice  is  necessary  to  support  a  recovery.432 

The  presumption  of  malice  arising  from  the  intentional  pub- 
lication of  defamatory  matter  is  rebuttable  in  the  sense  that 
the  defendant  may  show  that  the  publication  was  privileged,433 
but,  in  the  absence  of  such  a  showing,  it  is  a  conclusive  pre- 

OBEGON:     Upton  v.  Hume,  24  Or.  420,  41  A.  S.  R.  863. 

PENNSYLVANIA:  Collins  v.  Dispatch  Pub.  Co.,  152  Pa.  187,  34  A.  S* 
R.  636;  Conroy  v.  Pittsburgh  Times,  139  Pa.  334,  23  A.  S.  R.  188. 

TEXAS:  Bradstreet  Co.  v.  Gill,  72  Tex.  115,  13  A.  S.  R.  768;  Holt  T. 
Parsons,  23  Tex.  9,  76  A.  D.  49. 

VIRGINIA:     Dillard  v.  Collins,  25  Grat.  343. 

WISCONSIN:     Candrian  v.  Miller,  98  Wis.  164. 

The  presumption  arises  also  in  a  prosecution  for  criminal  libel 
State  v.  Clyne,  53  Kan.  8;  State  v.  Brady,  44  Kan.  435,  21  A.  S.  R.  296 ; 
Com.  v.  Blanding,  3  Pick.  (Mass.)  304,  15  A.  D.  214;  Com.  v.  Snelling 
15  Pick.  (Mass.)  337;  State  v.  Mason,  26  Or.  273,  46  A.  S.  R.  629. 

Damages  are  presumed  from  the  unauthorized  publication  of  action 
able  words.  Byam  v.  Collins,  111  N.  Y.  143,  7  A.  S.  R.  726;  Belo  v 
Fuller,  84  Tex.  450,  31  A.  S.  R.  75.  And  see  Collins  v.  Dispatch  Pub 
Co.,  152  Pa.  187,  34  A.  S.  R.  '636. 

One  who  sells  and  delivers  a  paper  containing  a  libel  is  presumed 
to  know  that  it  contains  a  libel,  in  the  absence  of  evidence  to  the  con- 
trary. Street  v.  Johnson,  80  Wis.  455,  14  L.  R.  A.  203. 

43iCoogler  v.  Rhodes,  38  Fla.  240,  56  A.  S.  R.  170;  Stewart  v.  Hall, 
83  Ky.  375;  Gardemal  v.  McWilliams,  43  La.  Ann.  454,  26  A.  S.  R.  195; 
Bearce  v.  Bass,  88  Me.  521,  51  A.  S.  R.  446;  Ala.  &  V.  R.  Co.  v.  Brooks, 
69  Miss.  168,  30  A.  S.  R.  528;  Byam  v.  Collins,  111  N.  Y.  143,  7  A.  S. 
R.  726;  King  v.  Root,  4  Wend.  (N.  Y.)  113,  21  A.  D.  102;  Press  Co. 
v.  Stewart,  119  Pa.  584;  Conroy  v.  Pittsburgh  Times,  139  Pa.  334,  23 
A.  S.  R.  188;  Kent  v.  Bongartz,  15  R.  I.  72,  2  A.  S.  R.  870;  Mo.  Pac. 
R.  Co.  v.  Richmond,  73  Tex.  568,  15  A.  S.  R.  794;  Dillard  v.  Collins, 
25  Grat.  (Va.)  343;  Brown  v.  N.  &  W.  R.  Co.,  100  Va.  619,  60  L.  R.  A. 
472;  Wilson  v.  Noonan,  35  Wis.  321,  349. 

432Byrd  v.  Hudson,  113  N.  C.  203;  Ramsey  v.  Cheek,  109  N.  C.  270. 

433  Holt  v.  Parsons,  23  Tex.  9,  76  A.  D.  49;  Strode  v.  Clement,  90  Va. 
553. 


§  51  KNOWLEDGE  OF  CONTENTS.  209 

sumption;  that  is  to  say,  it  is  a  rule  of  substantive  law  to 
the  effect  that  one  who  intentionally  publishes  unprivileged 
defamatory  matter  concerning  another  is  responsible  in  law, 
even  though  he  acted  in  good  faith.  Want  of  actual  malice 
is  immaterial.434 

K.    KNOWLEDGE   OF   CONTENTS    OF    INSTRUMENT. 

§  51.    Contracts  and  conveyances. 

It  is  said  that  a  man  is  presumed  to  know  the  contents  of 
an  instrument  which  he  executes.  Correctly  speaking,  this 
is  not  a  presumption.  It  is  rather  a  rule  that,  in  the  absence 
of  a  certain  form  of  fraud  or  mistake,  the  executant  of  an  in- 
strument shall  not  be  permitted  to  allege  ignorance  of  its 
contents,  either  as  a  cause  of  action  or  as  a  ground  of  de- 
fense.435 If  the  executant,  at  the  time  he  signs  the  instrument, 
labors  under  a  mistake  as  to  the  nature  of  the  transaction 
evidenced  by  the  writing,  the  rule  just  announced  does  not 
apply,  however,  and  the  instrument  may  be  avoided.  Mistake 
in  this  regard  may  be  induced  either  by  the  misrepresentation 
of  a  third  person  as  to  the  contents  of  the  instrument,  or  by 

<34Burt  v.  Advertiser  N.  Co.,  154  Mass.  238;  Byrd  v.  Hudson,  113  N.  C. 
203;  Ramsey  v.  Cheek,  109  N.  C.  270;  Wilson  v.  Noonan,  35  Wis.  321, 
349. 

435  Warren  v.  Jacksonville,  15  111.  236,  58  A.  D.  610;  Androscoggin 
Bank  v.  Kimball,  10  Cush.  (Mass.)  373;  Fivey  v.  Pa.  R.  Co.,  67  N.  J. 
Law,  627,  91  A.  S.  R.  445. 

A  man  executes  an  'instrument,  within  the  meaning  of  this  rule, 
whether  he  signs  it  in  writing  or  by  making  his  mark.  Bates  v.  Harte, 
124  Ala.  427,  82  A.  S.  R.  186;  Doran  v.  Mullen,  78  111.  342;  Harris  v. 
Story,  2  E.  D.  Smith  (N.  Y.)  363. 

The  rule  applies  only  to  the  parties  to  the  instrument.  An  attesting 
witness  is  not  presumed  to  know  the  contents  of  the  writing  that  he 
witnesses.  Plummer  v.  Baskerville,  36  N.  C.  (1  Ired.  Eq.)  252. 

If  a  corporation  formally  ratifies  a  contract  made  by  its  agent  with- 
out authority,  the  presumption  is  that  it  knew  all  the  terms  of  the 
contract.  Blen  v.  Bear  R.  &  A.  W.  &  M.  Co.,  20  Cal.  602,  81  A.  D.  132. 

Hammon,  Ev. — 14. 


210  LAW   OF   EVIDENCE.  §   51 

the  misrepresentation  of  the  other  party  to  the  transaction. 
In  either  event,  the  effect  of  the  mistake  is  the  same, — the 
instrument  is  void.  The  only  difference  in  the  two  cases  is 
that  in  the  latter  there  is,  and  in  the  former  there  is  not,  fraud 
as  between  the  parties  to  the  instrument. 

It  is  to  be  observed  that  there  is  a  wide  distinction  between 
mistake  as  to  the  nature  of  the  transaction  and  mistake  as 
to  the  precise  effect  which  the  contemplated  act  will  have. 
If  a  man  entering  into  a  contract  knows  the  general  purport 
of  the  transaction,  the  fact  that  he  is  mistaken  as  to  its  legal 
effect  does  not  ordinarily  afford  him  ground  for  relief.435* 
Thus,  if  an  illiterate  person  signs  a  deed  of  conveyance  upon 
the  representation  of  a  disinterested  third  person  that  the  in- 
strument is  a  power  of  attorney,  the  mistake  is  fundamental, 
and  goes  to  the  nature  of  the  transaction,  and  the  deed  is 
void.  On  the  other  hand,  if  a  man  executes  a  deed  as  se- 
curity, knowing  it  to  be  a  conveyance,  he  will  not  be  relieved 
because  he  believed  it  to  be  a  mere  form,  which  would  not 
be  enforced  against  him.435b 

Mistake  as  to  the  nature  of  the  transaction  is  confined 
almost  necessarily  to  cases  of  written  contract,  and  it  usually 
arises  where  the  mistaken  party  is  unable  for  some  reason  to 
read  the  instrument  supposed  to  embody  the  terms  of  the 
contract  proposed.  Thus,  if  a  person  who  contemplates  ex- 
ecuting a  written  contract  is  blind,  or  illiterate,  or  unfamiliar 
with  the  tongue  employed  by  the  draftsman,  and  some  one 
misreads  the  instrument  to  him,  or  misrepresents  its  contents 
to  such  a  degree  that  the  writing  is  of  a  nature  altogether 
different  from  the  contract  proposed  orally,  and  he  is  thereby 
induced,  to  sign  the  writing,  he  is  not  bound.4350  The  contract 

43saSee  §  53 (c),  infra. 

435  See  Hunter  v.  Walters,  7  Ch.  App.  75. 

436c  Thoroughgood's  Case,  2  Coke,  9a;   Foster  v.  Mackinnon,  L.  R.  4 


g   51  KNOWLEDGE  OF  CONTENTS.  211 

fails,  in  cases  of  this  kind,  from  an  absence  of  the  contractual 
element  of  agreement.438  If,  however,  a  person  about  to  sign 
a  contract  is  guilty  of  negligence  in  failing  to  ascertain  the 
contents  of  the  paper,  he  is  bound  by  his  signature,  even 
though  he  labors  under  a  mistake  as  to  the  nature  of  the 
transaction  there  expressed.  It  may  therefore  be  laid  down 
as  a  rule  that,  if  a  person  able  to  read  a  document  signs  it 
without  reading  it,  he  is  ordinarily  to  be  regarded  as  negli- 
gent, and  he  cannot  avoid  the  contract  because  he  thought  the 
document  embodied  a  transaction  of  a  different  nature.437 

C.  P.  704;  Bates  v.  Harte,  124  Ala.  427,  82  A.  S.  R.  186;  Puffer  v.  Smith, 
57  111.  527;  Baldwin  v.  Bricker,  86  Ind.  221;  Esterly  v.  Eppelsheimer, 
73  Iowa,  260;  Kagel  v.  Totten,  59  Md.  447;  Trambly  v.  Ricard,  130 
Mass.  259;  Soper  v.  Peck,  51  Mich.  563;  Wright  v.  McPike,  70  Mo.  175; 
First  Nat.  Bank  v.  Lierman,  5  Neb.  247;  Jackson  v.  Hayner,  12  Johns. 
(N.  Y.)  469;  Schuylkill  Co.  v.  Copley,  67  Pa.  386,  5  A.  R.  441;  Perez 
v.  Everett,  73  Tex.  431;  Walker  v.  Egbert,  29  Wis.  194,  9  A.  R.  548; 
Bowers  v.  Thomas,  62  Wis.  480.  And  see  Hewitt  v.  Jones,  72  111.  218; 
Gibbs  v.  Linabury,  22  Mich.  479,  7  A.  R.  675;  De  Camp  v.  Hamma,  29 
Ohio  St.  467. 

430  Foster  v.  Mackinnon,  L.  R.  4  C.  P.  704,  711. 

437  Upton  v.  Tribilcock,  91  U.  S.  45;  Hazard  v.  Griswold,  21  Fed.  178; 
Kimmell  v.  Skelly,  130  Gal.  555;  Wheeler  &  W.  Mfg.  Co.  v.  Long,  8  111. 
App.  463;  Robinson  v.  Glass,  94  Ind.  211;  McCormack  v.  Molburg,  43 
Iowa,  561;  Pa.  R.  Co.  v.  Shay,  82  Pa.  198,  203;  Bishop  v.  Allen,  55 
Vt.  423;  Sanger  v.  Dun,  47  Wis.  615,  32  A.  R.  789. 

If  a  man  may  learn  the  terms  of  a  contract  by  inquiry,  and  he 
guaranties  the  contract  without  ascertaining  its  terms,  nobody  mis- 
leading him,  he  is  bound,  even  though  he  was  mistaken  as  to  the 
terms  of  the  contract.'  Bascom  v.  Smith,  164  Mass.  61. 

There  are  some  circumstances,  however,  which  will  excuse  the  read- 
ing of  a  contract  by  a  person  able  to  read  it,  so  that  he  will  not  be 
bound  by  his  signature.  Foster  v.  Mackinnon,  L.  R.  4  C.  P.  704,  711; 
Beck  &  P.  L.  Co.  v.  Houppert,  104  Ala.  503,  53  A.  S.  R.  77;  Dashiel 
v.  Harshman,  113  Iowa,  283;  Allen  v.  Konrad,  59  App.  Div.  (N.  Y.) 
21;  Albany  City  Sav.  Inst.  v.  Burdick,  87  N.  Y.  40.  Thus,  the  ex- 
istence of  a  confidential  relation  between  the  parties  to  the  instru- 
ment, such  as  the  relation  of  husband  and  wife,  may  excuse  the  fail- 
ure to  read  the  paper  before  signing  it.  De  Ruiter  v.  De  Ruiter,  28 
Ind.  App.  9,  91  A.  S.  R.  107. 


212  LAW  OF  EVIDENCE.  §  51 

This  applies  with  especial  force  to  the  execution  of  negotiable 
instruments  which  afterwards,  and  before  maturity,  pass  for 
a  valuable  consideration  into  the  hands  of  innocent  third  per- 
sons.438 

The  rule  requiring  an  exercise  of  diligence  by  a  contracting 
party  applies  as  well  to  persons  unable  to  read  as  to  others; 
and  if  a  person  cannot,  for  one  reason  or  another,  read  the 
writing  he  contemplates  signing,  he  must  require  it  to  be  read 
to  him,  either  literally  or  in  substance,  before  he  signs  it, 
else  he  will  be  bound,  his  mistake  as  to  the  nature  of  the 
contract  notwithstanding.439 

These  principles  find  illustration  in  the  law  of  insurance 
and  carriers.  The  insured  is  presumed  to  know  the  contents 
of  the  application  signed  by  him,440  and  also  of  the  policy  is- 
sued to  him.441  So,  if  a  bill  of  lading  or  freight  receipt  con- 

4381  Daniel,  Neg.  Inst.  §§  845-853;  Cannon  v.  Lindsey,  85  Ala.  198, 
7  A.  S.  R.  38;  Walton  Guano  Co.  v.  Copelan,  112  Ga.  319,  52  L.  R.  A. 
268;  Leach  v.  Nichols,  55  111.  273;  Baldwin  v.  Barrows,  86  Ind.  351; 
Douglass  v.  Matting,  29  Iowa,  498;  Ort  v.  Fowler,  31  Kan.  478,  47  A. 
R.  501;  Kellogg  v.  Curtis,  65  Me.  59;  Mackey  v.  Peterson,  29  Minn. 
298;  Shirts  v.  Over  John,  60  Mo.  305;  Citizens'  Nat.  Bank  v.  Smith,  55 
N.  H.  593;  Chapman  v.  Rose,  56  N.  Y.  137,  15  A.  R.  401;  Ross  v. 
Doland,  29  Ohio  St.  473.  See  First  Nat.  Bank  v.  Johns,  22  W.  Va.  520, 
46  A.  R.  506. 

439  Foster  v.  Mackinnon,  L.  R.  4  C.  P.  704,  711;  Thoroughgood's  Case, 
2  Coke,  9a;   Bates  v.  Harte,  124  Ala.  427,  82  A.  S.  R.  186;   Bedell  v. 
Herring,   77   Cal.   572;    Hawkins   v.   Hawkins,   50   Cal.   558;    Robinson 
v.  Glass,  94   Ind.   211;    Baldwin  v.  Bricker,  86   Ind.   221,   222;    Roach 
v.  Karr,  18  Kan.   529,  26  A.  R.  788;    Foye  v.  Patch,  132  Mass.  105; 
Trambly  v.  Ricard,   130   Mass.   259;    School   Committee  v.   Kesler,   67 
N.  C.  443;  Bowers  v.  Thomas,  62  Wis.  480. 

If  an  instrument  is  read  to  an  illiterate  person,  he  is  presumed  to 
understand  its  contents.  Green  v.  Maloney,  7  Houst.  (Del.)  22. 

440  Ryan  v.  World  M.  L.  Ins.  Co.,  41  Conn.  168,  19  A.  R.  490;  Hart- 
ford L.  &  A.  Ins.  Co.  v.  Gray,  80  111.  28,  91  111.  159;  Southern  Mut.  Ins. 
Co.  v.  Yates,  28  Grat.  (Va.)  585. 

441  Cleaver  v.  Traders'  Ins.  Co.,  71  Mich.  414,  15  A.  S.  R.  275;  Morri- 
son v.  Ins.  Co.  of  N.  A.,  69  Tex.  353,  5  A.  S.  R.  63;   Straker  v.  Phenix 


§  51  KNOWLEDGE  OF  CONTENTS.  213 

taining  stipulations  limiting  the  common-law  liability  of  the 
carrier  is  delivered  to  the  shipper  and  retained  by  him,  the 
presumption  is,  in  the  absence  of  fraud  or  mistake,  that  he 
knew  of  those  stipulations  and  assented  to  them.442 

The  presumption  thus  indulged  against  the  shipper  is  not 
affected  by  the  fact  that  he  did  not  sign  the  bill  of  lading 
or  receipt,443  nor  by  the  fact  that  he  failed  to  read  the  instru- 
ment;444 and  this  is  so,  even  though  he  was  for  some  reason 

Ins.  Co.,  101  Wis.  413.  Under  some  circumstances,  however,  the  in- 
sured has  a  right  to  suppose  that  a  renewal  policy  is  like  the  original. 
Burson  v.  Fire  Ass'n,  136  Pa.  267,  20  A.  S.  R.  919. 

4*2  Mulligan  v.  111.  Cent.  R.  Co.,  36  Iowa,  181,  14  A.  R.  514;  Pac.  Exp. 
Co.  v.  Foley,  46  Kan.  467,  26  A.  S.  R.  107;  Cox  v.  Cent.  Vt.  R.,  170 
Mass.  129;  Smith  v.  American  Exp.  Co.,  108  Mich.  572;  Christenson 
v.  American  Exp.  Co.,  15  Minn.  270,  2  A.  R.  122;  Durgin  v.  American 
Exp.  Co.,  66  N.  H.  277;  Zimmer  v.  N.  Y.  C.  &  H.  R.  R.  Co.,  137  N.  Y. 
460;  Germania  F.  Ins.  Co.  v.  M.  &  C.  R.  Co.,  72  N.  Y.  90,  28  A.  R.  113; 
Ballou  v.  Earle,  17  R.  I.  441,  33  A.  S.  R.  881;  Merchants'  Dispatch 
Transp.  Co.  v.  Bloch,  86  Tenn.  392,  6  A.  S.  R.  847;  Dillard  v.  L.  &  N. 
R.  Co.,  70  Tenn.  288;  Ryan  v.  Mo.,  K.  &  T.  R.  Co.,  65  Tex.  13;  Davis 
v.  Cent.  Vt.  R.  Co.,  66  Vt.  290,  44  A.  S.  R.  852;  Boorman  v.  American 
Exp.  Co.,  21  Wis.  152.  Contra,  Central  R.  &  B.  C.o.  v.  Hasselkus,  91  Ga. 
382,  44  A.  S.  R.  37  (statute) ;  Chicago  &  N.  W.  R.  Co.  v.  Calumet  Stock 
Farm,  194  111.  9,  88  A.  S.  R.  68;  Pittsburgh,  C.  &  St.  L.  R.  Co.  v. 
Barrett,  36  Ohio  St.  448  (semble). 

The  shipper  is  not  presumed  to  assent  to  a  provision  in  the  bill  of 
lading  which  is  illegible.  Perry  v.  Thompson,  98  Mass.  249.  Nor  is 
his  assent  presumed  to  conditions  on  the  back  of  the  bill  of  lading  or 
receipt  unless  he  is  shown  to  have  known  of  them.  Mich.  Cent.  R. 
Co.  v.  Mineral  Springs  Mfg.  Co.,  16  Wall.  (U.  S.)  318;  Western 
Transp.  Co.  v.  Newhall,  24  111.  466,  76  A.  D.  760.  And  see  N.  Y.,  N. 
H.  &  H.  R.  Co.  v.  Sayles,  87  Fed.  444. 

4*3  The  Henry  B.  Hyde,  82  Fed.  681;  Mouton  v.  L.  &  N.  R.  Co.,  128 
Ala.  537;  Adams  Exp.  Co.  v.  Carnahan,  29  Ind.  App.  606,  94  A.  S.  R. 
279. 

444  Leitch  v.  Union  R.  Transp.  Co.,  7  Chi.  Leg.  News,  291,  Fed.  Cas.  No. 
8,224;  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Weakly,  50  Ark.  397,  7  A.  S.  R.  104; 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Dill,  48  Kan.  210;  Louisville  &  N.  R.  Co. 
v.  Brownlee,  14  Bush  (Ky.)  590;  Grace  v.  Adams,  100  Mass.  505,  97 
A.  D.  117,  1  A.  R.  131;  McMillan  v.  Mich.  S.  &  N.  I.  R.,  16  Mich.  79,  93 


214  LAW   OF  .EVIDENCE.  §   52 

unable  to  read  it.445  Knowledge  of  the  contents  of  the  docu- 
ment is  not  presumed  against  the  shipper  merely  from  the 
fact  of  his  having  received  and  kept  it,  however,  where  it  was 
not  delivered  to  him  until  after  the  goods  were  shipped,  and 
it  contains  terms  not  mentioned  in  the  agreement  under 
which  the  property  was  accepted  for  shipment.446 

The  presumption  of  knowledge  arises  against  a  passenger, 
also,  where  he  accepts  a  ticket  which  takes  the  form,  not  of 
a  mere  check  to  indicate  the  route,  but  of  a  contract  cover- 
ing the  rights  of  the  parties.  He  is  accordingly  bound  by 
its  terms,  even  though  he  failed  to  read  it.447 

§  52.    Wills. 

Generally  speaking,  evidence  of  the  due  execution  of  a 
will  by  a  person  of  capacity  raises  a  presumption  that  the 

A.  D.  208;   McFadden  v.  Mo.  Pac.  R.  Co.,  92  Mo.  343,  1  A.  S.  R.  721; 
Kirkland  v.  Dinsmore,  62  N.  Y.  171,  20  A.  R.  475;  Hill  v.  S.,  B.  &  N.  Y. 
R.  Co.,  73  N.  Y.  351,  29  A.  R.  163;   Phifer  v.  C.  C.  R.  Co.,  89  N.  C.  311, 
45  A.  R.  687;   Johnstone  v.  Richmond,  etc.,  R.  Co.,  39  S.  C.  55;   Schal- 
ler  v.  C.  &  N.  W.  R.  Co.,  97  Wis.  31. 

445  Jones  v.  C.  &  S.  M.  R.  Co.,  89  Ala.  376;  Fibel  v.  Livingston,  64 
Barb.  (N.  Y.)  179. 

44o  The  Arctic  Bird,  109  Fed.  167;  Merchants'  Despatch  Transp.  Co. 
v.  Furthmann,  149  111.  66,  41  A.  S.  R.  265;  Mo.  Pac.  R.  Co.  v.  Beeson, 
30  Kan.  298;  Swift  v.  Pac.  Mail  S.  S.  Co.,  106  N.  Y.  206;  Bostwick  v. 

B.  &  O.  R.  Co.,  45  N.  Y.  712;   Gaines  v.  Union  T.  &  I.  Co.,  28  Ohio 
St.  418;    111.   Cent.  R.  Co.  v.  Craig,  102  Tenn.  298;    Mo.,  K.  &  T.  R. 
Co.  v.  Carter,  9  Tex.  Civ.  App.  677;  Strohn  v.  D.  &  M.  R.  Co.,  21  Wis. 
554,  94  A.  D.  564. 

In  some  states,  however,  the  presumption  of  knowledge  applies 
against  the  shipper  if  he  signs  the  instrument  thus  subsequently  de- 
livered, even  though  it  differs  from  the  previous  oral  agreement. 
Stewart  v.  Cleveland,  C.,  C.  &  St.  L.  R.  Co.,  21  Ind.  App.  218;  Hutchin- 
son  v.  C.,  St.  P.,  M.  &  O.  R.  Co.,  37  Minn.  524;  St.  Louis,  K.  C.  & 
N.  R.  Co.  v.  Cleary,  77  Mo.  634,  46  A.  R.  13. 

447Boylan  v.  H.  S.  R.  Co.,  132  U.  S.  146;  Fonseca  v.  Cunard  S. 
S.  Co.,  153  Mass.  553,  25  A.  S.  R.  660.  And  see  Crary  v.  L.  V.  R.  Co.,. 
203  Pa.  525,  93  A.  S.  R.  778. 


§  52  KNOWLEDGE  OF  CONTENTS.  215 

testator  was  aware  of  the  contents  of  the  instrument.448  In 
some  states  this  is  true,  even  where  the  will  contains  a  provi- 
sion for  the  benefit  of  the  draughtsman,440  unless  it  was  drawn 
by  a  stranger  to  the  blood  of  the  testator,  and  it  contains  a 
considerable  provision  for  his  benefit,  in  which  case  it  is  pre- 
sumed that  the  testator  was  not  aware  of  the  contents  of 
the  document,  and  the  burden  of  proving  the  contrary  rests 
on  the  proponent.450  The  authorities  on  this  question  are 
not  in  accord. 

448  Guardhouse  v.  Blackburn,  L.  R.  1  Prob.  &  Div.  109,  Thayer,  Gas. 
Ev.  836,  840;  Garrett  v.  Heflin,  98  Ala,  615,  39  A.  S.  R.  89;  Hughes 
v.  Meredith,  24  Ga.  325,  71  A.  D.  127;  Robinson  v.  Brewster,  140  111. 
649,  33  A.  S.  R.  265;  Sechrest  v.  Edwards,  4  Mete.  (Ky.)  163;  Barnes 
v.  Barnes,  66  Me.  286,  296;  Downey  v.  Murphey,  18  N.  C.  (1  Dev.  &  B.) 
82;  Rees  v.  Stille,  38  Pa.  138.  See,  however,  Gerrish  v.  Nason,  22  Me. 
438,  39  A.  D.  589. 

There  is  no  distinction  in  this  respect  between  wills  executed  by 
those  who  can  and  those  who  cannot  write.  Doran  v.  Mullen,  78  111. 
342. 

4*8  Cramer  v.  Crumbaugh,  3  Md.  491;  Blume  v.  Hartman,  115  Pa.  32, 
2  A.  S.  R.  525.  If,  however,  the  capacity  of  the  testator  is  in  doubt, 
or  if  he  can  neither  read,  write,  nor  speak,  evidence  is  essential  that 
he  knew  the  contents  of  the  will.  Delafield  v.  Parish,  25  N.  Y.  9,  35; 
Rollwagen  v.  Rollwagen,  63  N.  Y.  504;  Tomkins  v.  Tomkins,  1  Bailey, 
(S.  C.)  92,  19  A.  D.  656;  Watterson  v.  Watterson,  1  Head  (Tenn.)  1. 

Testator's  knowledge  of  the  contents  of  the  document  may  be  shown 
by  circumstantial  evidence.  Raworth  v.  Marriott,  1  Mylne  &  K.  643; 
Nexsen  v.  Nexsen,  3  Abb.  Dec.  (N.  Y.)  360;  Montague  v.  Allan's 
Ex'r,  78  Va.  592,  49  A.  R.  384. 

Knowledge  of  the  contents  of  a  will  is  imputed  to  a  corporation 
from  its  knowledge  of  the  existence  of  the  document,  where  title  to  its 
stock  depends  upon  the  terms  of  the  will.  Marbury  v.  Ehlen,  72  Md. 
206,  20  A.  S.  R.  467;  Caulkins  v.  Gas-Light  Co.,  85  Tenn.  683,  4  A. 
S.  R.  786. 

480  Garrett  v.  Heflin,  98  Ala.  615,  39  A.  S.  R.  89;  Hughes  v.  Meredith, 
24  Ga.  325,  71  A.  D.  127;  Beall  v.  Mann,  5  Ga.  456;  Blume  v.  Hartman, 
115  Pa.  32,  2  A.  S.  R.  525;  Kelly  v.  Settegast,  68  Tex.  13;  In  re  Bar- 
ney's Will,  70  Vt.  352. 

If  a  will  drawn  by  the  testator's  confidential  agent  contains  a  pro- 


216  LAW   OF   EVIDENCE.  §   53 

L.  LAW. 

§  53.    Knowledge  of  law. 

Citizens  of  a  state  are  said  to  be  presumed  to  know  the  law 
of  their  domicile ;  consequently  they  are  not  allowed  to  allege 
ignorance  of  it  as  an  excuse  for  their  acts  or  omissions.451  This 

vision  in  his  own  favor,  it  is  at  most  a  suspicious  circumstance  of 
more  or  less  weight,  according  to  the  facts  of  each  particular  case. 
Barry  v.  Butlin,  2  Moore  P.  C.  480,  Thayer,  Cas.  Ev.  82;  Downey  v. 
Murphey,  18  N.  C.  (1  Dev.  &  B.)  82;  Yardley  v.  Cuthbertson,  108  Pa. 
395,  56  A.  R.  218.  See,  however,  Tyrrell  v.  Painton  [1894]  Prob.  151, 
156,  Thayer,  Cas.  Ev.  85.  See,  generally,  6  Current  Law,  1909. 

451  Morgan  v.  U.  S.,  113  U.  S.  476;  Goodwyn  v.  Baldwin,  59  Ala.  127; 
Gauldin  v.  Shehee,  20  Ga.  531;  Marshall  County  Sup'rs  v.  Cook,  38  111. 
44,  87  A.  D.  282;  Shortwell  v.  Murray,  1  Johns.  Ch.  (N.  Y.)  512. 

A  limitation  upon  the  rule  that  ignorance  of  the  law  is  no  ground  for 
relief  is  made  in  cases  where  the  error  is  in  reference  to  foreign  law. 
Norton  v.  Marden,  15  Me.  45;  Haven  v.  Foster,  9  Pick.  (Mass.)  112; 
Vinal  v.  Continental  C.  &  I.  Co.,  53  Hun  (N.  Y.)  247;  Bank  of  Chilli- 
cothe  v.  Dodge,  8  Barb.  (N.  Y.)  233;  Curtis  v.  Leavitt,  15  N.  Y.  9, 
193;  King  v.  Doolittle,  1  Head  (Tenn.)  77.  The  law  of  a  sister 
state  is  foreign  law  in  this  sense.  Upton  v.  Englehart,  3  Dill.  496, 
501,  Fed.  Cas.  No.  16,800;  Waterman  v.  Sprague  Mfg.  Co.,  55  Conn. 
554;  Bethell  v.  Bethell,  92  Ind.  318;  Haven  v.  Foster,  9  Pick.  (Mass.) 
112;  Finch  v.  Mansfield,  97  Mass.  89;  Wood  v.  Roeder,  50  Neb.  476; 
Bank  of  Chillicothe  v.  Dodge,  8  Barb.  (N.  Y.)  233;  King  v.  Doolittle, 
1  Head  (Tenn.)  77.  A  nonresident  is  bound  to  take  notice  of  the  law 
of  the  place  where  he  acts,  however.  The  exception  as  to  foreign  law, 
just  noted,  does  not  excuse  his  ignorance  of  the  law  of  a  foreign 
state  in  which  he  is  staying.  In  re  Barronet,  1  El.  &  Bl.  1;  Rex  v. 
Esop,  7  Car.  &  P.  456;  Tyson  v.  Passmore,  2  Pa.  122,  44  A.  D.  181. 
And  where  one  makes  a  contract  with  direct  reference  to  the  law  of 
a  foreign  state,  he  is  bound  to  take  notice  of  that  law.  Huthsing  v. 
Bosquet,  3  McCrary,  569,  17  Fed.  54. 

A  man  is  not  presumed  to  know  special  or  private  legislative  acts. 
King  v.  Doolittle,  1  Head  (Tenn.)  77.  Nor  administrative  orders. 
State  v.  Butts,  3  S.  D.  577,  19  L.  R.  A.  725. 

Misconstruction  of  a  doubtful  rule  of  law  is  sometimes  regarded  by 
the  courts  as  relieving  a  party  from  a  liability  which  would  otherwise 
accrue  from  acts  based  on  the  mistake.  Marsh  v.  Whitmore,  21  Wall. 
(U.  S.)  178;  Miller  v.  Proctor,  20  Ohio  St.  442;  Morrill  v.  Graham,  27 
Tex.  646.  And  see  Kostenbader  v.  Spotts,  80  Pa.  430. 


LAW.  217 

so-called  presumption  is  not  truly  such.  It  is  a  rule  of  sub- 
stantive  law  having  no  relation  to  evidence,  and  is  correctly 
expressed  in  the  form,  Ignorance  of  the  law  excuses  no  man 
from  the  legal  consequences  of  his  acts  or  omissions.^  This^ 
being  so,  if  it  becomes  material  to  inquire  whether  ^  J^QJJ 
knew  the  state  of  the  law  in  some  particular,  the  so-called 
presumption  does  not  operate  to  supply  evidence  that  lie  had 
sHCb.  k^owledgey  nor  does  it  affegt  the  burden  of  prpof  as  to 
that  fact.  It  furnishes  a  rule  of  liability,  not  of  evidence.4" 
(a)  Crimes.  This  principle  is  applied  in  criminal  cases.  If 
a  man  does  an  act  which  constitutes  a  crime  in  law,  he  cannot 
ordinarily  escape  punishment  because  he  did  not  know  that 
the  law  attached  that  character  to  the  act.453  Thus,  a  person 
is  guilty  of  bigamy  or  adultery,  even  though  he  believed  that 
a  void  decree  of  divorce  obtained  by  him  or  the  other  party 
was  valid.454  The  rule  does  not  apply,  however,  where,  by 
reason  of  mistake  as  to  one's  legal  rights,  there  was  an  ab- 
sence of  a  specific  criminal  intent  which  is  essential  to  the 
crime  charged.455 

Generally,  money  paid  under  mistake  of  law  cannot  be  recovered 
by  the  payer,  although  it  is  against  conscience  for  the  payee  to  re- 
tain it.  Keener,  Quasi  Cont.  85-96;  Clarke  v.  Butcher,  9  Cow.  (N.  Y.) 
€74. 

«2Thayer,  Prel.  Treat.  Ev.  335;  Martindale  v.  Falkner,  2  C.  B.  706, 
719;  Reg.  v.  Tewkesbury,  L.  R.  3  Q.  B.  629;  Black  v.  Ward,  27  Mich. 
191,  15  A.  R.  162;  State  v.  Kimbrough  (Tenn.)  52  L.  R.  A.  668. 

453  Clark  &  M.  Crimes  (2d  Ed.)  §§  73,  74;  Reg.  v.  Mailloux,  3  Pugsl. 
(N.  B.)  493;  U.  S.  v.  Anthony,  11  Blatchf.  200,  Fed.  Gas.  No.  14,459;  Wine- 
hart  v.  State,  6  Ind.  30;  Com.  v.  Bagley,  7  Pick.  (Mass.)  279;  Peo- 
-ple  v.  Ackerman,  80  Mich.  588;  Whitton  v.  State,  37  Miss.  379.  See, 
however,  Brent  v.  State,  43  Ala.  297. 

This  rule  is  applied  in  civil  cases  wherein  a  crime  is  alleged.  Cluff 
v.  Mut.  B.  L.  Ins.  Co.,  13  Allen  (Mass.)  308. 

*™  Russell  v.  State,  66  Ark.  185;  State  v.  Hughes,  58  Iowa,  165;  State 
v.  Goodenow,  65  Me.  30;  Reynolds  v.  State,  58  Neb.  49. 

«s  Clark   &  M.  Crimes  (2d  Ed.)  §  75;  Rex  v.  Hall,  3  Car.  &  P.  409;  Reg.v. 


218  LAW   OF   EVIDENCE.  §   53e 

(b)  Torts.     Neither  are  the  consequences  attaching  by  law 
to  civil  wrongs  affected  ordinarily  by  the  guilty  party's  ig- 
norance of  wrongdoing.456    If,  for  instance,  an  officer  arrests 
or  imprisons  a  man  under  a  writ  which  is  void  in  law  on  its 
face,  he  is  not  excused  from  answering  in  damages  by  the 
fact  that  he  thought  the  writ  valid.457 

(c)  Contracts.     Important  applications  of  the  principle  that 
ignorance  or  mistake  of  law  excuses  no  man  from  the  legal 
effect  of  his  acts  or  omissions  occur  in  the  law  of  contract. 
The  principle  may  affect  the  formation  of  the  contract,  its 
ratification,  or  its  legality. 

—  Formation  of  contract.  While  ignorance  or  mistake 
of  fact  often  prevents  the  formation  of  a  contract,458  it  is  gen- 
erally otherwise  in  regard  to  mistake  of  law,  though  it  should 
be  said  that  the  cases  are  not  in  accord  on  this  point.  As  a 
rule,  a  mistake  as  to  the  legal  effect  of  a  contract  into  which 
the  parties  enter,  arising  out  of  their  ignorance  or  misappre- 
hension of  the  law,  does  not  defeat  the  contract,  or  excuse 
them  from  performing  it  according  to  its  terms,  and  evidence 
to  show  such  mistake  or  ignorance  is  accordingly  inadmissi- 
ble.459 It  is  important  to  note  an  apparent  exception  to  the 
general  rule.  In  the  maxim,  ' '  Ignorantia  juris  haud  excusat, ' ' 

Twose,  14. Cox  Cr.  Gas.  327;    State  v.  McKinney,  42   Iowa,  205;    Cut- 
ter v.  State,  36  N.  J.  Law,  125. 

456  wills  v.  Noyes,  12  Pick.  (Mass.)  324. 

457  Grumon  v.  Raymond,  1  Conn.  40,  48;  Patterson  v.  Prior,  18  Ind. 
440,  81  A.  D.  367. 

458Hammon,  Cont.  §§  92-105. 

459  Hunter  v.  Walters,  7  Ch.  App.  75;  Hunt  v.  Rhodes,  1  Pet.  (U. 
S.)  1;  Upton  v.  Tribilcock,  91  U.  S.  45,  50;  Wheaton  v.  Wheaton,  9 
Conn.  96;  State  v.  Van  Pelt,  Smith  (Ind.)  118;  Mears  v.  Graham,  8 
Blackf.  (Ind.)  144;  Gist  v.  Drakely,  2  Gill  (Md.)  330,  41  A.  D.  426; 
Taylor  v.  Buttrick,  165  Mass.  547,  52  A.  S.  R.  530;  Rice  v.  Dwight 
Mfg.  Co.,  2  Gush.  (Mass.)  80;  Harris  v.  Smith,  40  Mich.  453;  Phillip 
v.  Gallant,  62  N.  Y.  256;  Mell'sh  v.  Robertson,  25  Vt.  603. 


§  53c  LAW.  219 

the  word  "jus"  is  used  in  the  sense  of  denoting  general  law, — 
the  ordinary  law  of  the  country.  When  the  word  "jus"  is 
used  in  the  sense  of  denoting  a  private  right,  depending  upon 
questions  of  mixed  law  and  fact,  or  upon  the  true  construc- 
tion of  a  particular  instrument,  that  maxim  has  no  application. 
Accordingly,  if  an  apparent  agreement  is  entered  into  under 
a  mutual  mistake  of  the  parties  as  to  their  relative  and  respect- 
ive rights,  either  party  is  entitled  to  have  the  agreement  set 
aside,  since  ignorance  of  particular  private  rights  is  equivalent 
to  ignorance  of  fact.400  Ignorance  or  mistake  as  to  private 
rights  is  of  two  kinds:  First,  ignorance  or  mistake  in  point 
of  fact  as  to  the  existence  or  nonexistence  of  any  right  or 
title  in  the  party;  and,  second,  all  the  facts  being  known,  ig- 
norance or  misapprehension  of  the  law  having  application  to 
those  facts.461  As  to  the  first  kind,  if  an  apparent  contract  is 
made  in  ignorance  of  the  fact  of  the  existence  of  a  right  or 
title  which  forms  the  subject-matter  of  the  agreement,  then 
the  agreement  is  void,  even  though  the  error  results  from 
mistake  of  law.402  And  a  contract  is  defeated,  also,  where 
the  parties,  erroneously  supposing  a  right  or  title  to  exist, 
enter  into  an  agreement  concerning  the  same.463  As  to  the 

"oHammon,  Cont.  §  102;  Bingham  v.  Bingham,  1  Ves.  Sr.  126; 
Broughton  v.  Hutt,  3  De  Gex  &  J.  501;  Cooper  v.  Phibbs,  L.  R.  2  H.  L. 
149,  170;  Jones  v.  Clifford,  3  Ch.  Div.  779;  Earl  Beauchamp  v.  Winn, 
L.  R.  6  H.  L.  223;  Baker  v.  Massey,  50  Iowa,  399,  404;  Neal  v.  Co- 
burn,  92  Me.  139,  69  A.  S.  R.  495;  King  v.  Doolittle,  1  Head  (Tenn.) 
77;  Toland  v.  Corey,  6  Utah,  392;  Webb  v.  Alexandria  City  Council,  33 
Grat.  (Va.)  168,  175,  176. 

46i  Story,  Eq.  Jur.  §§  122,  130;  Trigg  v.  Read,  5  Humph.  (Tenn.) 
528,  533,  537. 

*«2  Story,  Eq.  Jur.  §  122;  Trigg  v.  Read,  5  Humph.  (Tenn.)  528,  536 

4«sBlakeman  v.  Blakeman,  39  Conn.  320;  Fitzgerald  v.  Peck,  4  Litt. 
(Ky.)  125;  Martin  v.  McCormick,  8  N.  Y.  331;  Gross  v.  Leber,  47  Pa. 
520;  Lawrence  v.  Beaubien,  2  Bailey  (S.  C.)  623;  King  v.  Doolittle, 
1  Head  (Tenn.)  77.  But  see  Birkhauser  v.  Schmitt,  45  WIs.  316.  And 
«ee  Broughton  v.  Hutt,  3  De  Gex  &  J.  501. 


220  LAW   OF   EVIDENCE.  §   53C 

V 

second  kind,  the  rule,  as  settled  in  the  United  States,  is  that 
ignorance  or  misapprehension  of  the  law,  whether  or  not  the 
principles  are  plain  and  settled,  and  a  consequent  mistake 
as  to  private  right  or  title,  does  not  avoid  the  contract,  if  the 
party  had  full  knowledge  of  the  facts  constituting  his  right 
or  title.464 

While  a  renunciation  'of  rights  under  a  mistake  as  to  par- 
ticular applications  of  the  law  is  not  conclusive,  the  de- 
liberate renunciation  or  compromise  of  doubtful  rights  is, 
of  course,  binding.465  And  if  a  compromise  is  deliberately 
entered  into  upon  advice,  the  party's  advisers  having  the 
question  fully  before  them,  the  contract  cannot  be  set  aside 
because  a  particular  point  of  law  was  mistaken  or  over- 
looked.466 

-  (1)  Misrepresentation  of  law.  As  a  rule,  a  misrepresen- 
tation of  law  will  not  found  an  action  for  deceit ;  nor  can  a  par- 
ty avoid  a  contract  as  for  fraud  because  he  was  induced  to  en- 
ter into  it  by  a  false  statement  of  its  legal  effect.467  This  rule 

*64  story,  Eq.  Jur.  §  120;  Bank  of  U.  S.  v.  Daniel,  12  Pet.  (U.  S.)  32; 
Good  v.  Herr,  7  Watts  &  S.  (Pa.)  .253;  Trigg  v.  Read,  5  Humph.  (Tenn.) 
528,  533,  535;  Osburn  v.  Throckmorton,  90  Va.  311;  Birkhauser  Y. 
Schmitt,  45  Wis.  316.  Contra,  Lowndes  v.  Chisholm,  2  McCord  Eq. 
(S.  C.)  455.  And  see  Warder  v.  Tucker,  7  Mass.  449,  5  A.  D.  62. 

It  is  often  otherwise  in  equity,  where  the  mistake  was  mutual. 
Champlin  v.  Lay  tin,  6  Paige  (N.  Y.)  189. 

465Hammon,  Cont.  §§  102,  338;  Story,  Eq.  Jur.  §§  121,  131;  Rogers 
v.  Ingham,  3  Ch.  Div.  351;  Cann  v.  Cann,  1  P.  Wms.  723,  727;  Union 
Bank  v.  Geary,  5  Pet.  (U.  S.)  99,  114;  Stover  v.  Mitchell,  45  111. 
213;  Trigg  v.  Read,  5  Humph.  (Tenn.)  528,  534,  543;  Smith  v.  Penn, 
22  Grat.  (Va.)  402. 

466  Stewart  v.  Stewart,  6  Clark  &  F.  911. 

467  Lewis  v.  Jones,  4  Barn.  &  C.  506;    Mut.  L.  Ins.  Co.  v.  Phinney, 
178  U.  S.  327,  44  L.  Ed.  1088;   Upton  v.  Tribilcock,  91  U.  S.  45;   Mar- 
tin v.  Wharton,  38  Ala.  637;   People  v.  San  Francisco  Sup'rs,  27  Cal. 
655;  Cooper  v.  Hunter,  8  Colo.  App.  101;  Fish  v.  Cleland,  33  111.  238; 
Drake  v.  Latham,  50  111.   270;    Ind.  Ins.  Co.  v.  Brehm,  88  Ind.  578; 
Clem  v.  N.  &  D.  R.  Co.,  9  Ind.  488,  68  A.  D.  653;  Thompson  v.  Phoenix 


§  53c  LAW.  221 

does  not  apply  in  all  cases,  however.  The  circumstances  and 
the  position  of  the  parties  are  sometimes  such  as  to  justify 
the  one  in  relying  upon  the  representations  of  the  other  as  to 
the  law,468  as  where  the  parties  stand  in  a  relation  of  confi- 
dence,489 or  where  one,  by  reason  of  his  unfamiliarity  with 
legal  transactions,  is  compelled  to  rely  upon  the  superior 
knowledge  of  the  other.470  In  determining  when  a  misrepre- 
sentation is  of  a  matter  of  law,  and  when  of  a  matter  of  fact, 
we  are  confronted  with  the  same  difficulty  as  that  which  we 
met  in  considering  mistake  of  law  and  mistake  of  fact.  What 
was  said  there  doubtless  applies  here.471 

—  Ratification  of  contract.  As  to  whether  a  man  must 
have  actual  knowledge  of  his  legal  right  to  avoid  a  contract 
made  in  infancy  in  order  to  bind  himself  by  ratification,  the 
cases  are  in  conflict.  One  line  of  cases  holds  that  there  can 

Ins.  Co.,  75  Me.  55;  Jaggar  v.  Winslow,  30  Minn.  263;  Wood  v.  Rceder, 
50  Neb.  476;  Starr  v.  Bennett,  5  Hill  (N.  Y.)  303;  Unckles  v.  Hentz, 
18  Misc.  (N.  Y.)  644;  Aetna  Ins.  Co.  v.  Reed,  33  Ohio  St.  283;  Gormely 
v.  Gymnastic  Ass'n,  55  Wis.  350.  See,  however,  Ross  v.  Drinkard's 
Adm'r,  35  Ala.  434. 

Misrepresentation  of  law  may  afford  ground  for  relief  in  equity. 
State  v.  Paup,  13  Ark.  129,  56  A.  D.  303;  Tyson  v.  Passmore,  2  Pa. 
122,  44  A.  D.  181;  Brown  v.  Rice's  Adm'r,  26  Grat.  (Va.)  467. 

Misrepresentation  of  foreign  law  is  misrepresentation  of  fact,  and 
may,  at  law,  avoid  a  contract  made  in  reliance  on  it.  Bethell  v. 
Bethell,  92  Ind.  318. 

*«8  But  see  Hirschfeld  v.  L.  B.  &  S.  C.  R.  Co.,  2  Q.  B.  Div.  1. 

469  Townsend  v.  Cawles,  31  Ala.  428;  Sims  v.  Ferrill,  45  Ga.  585; 
Stumpf  v.  Stumpf,  7  Mo.  App.  272;  Allen  v.  Frawley,  106  Wis.  638. 

4™  Lehman  v.  Shackleford,  50  Ala.  437;  Ross  v.  Drinkard's  Adm'r, 
35  Ala.  434;  Kinney  v.  Dodge,  101  Ind.  573;  Berry  v.  Whitney,  40 
Mich.  65;  Cooke  v.  Nathan,  16  Barb.  (N.  Y.)  342;  Moreland  v.  Atchi- 
son,  19  Tex.  303. 

4Ti  See  page  219,  supra.  Whether  a  particular  piece  of  land  is  cover- 
ed by  a  deed  of  conveyance  is  ordinarily  a  question  of  fact,  not  of  law. 
Dashiel  v.  Harshman,  113  Iowa,  283.  Whether  certain  goods  have 
been  levied  upon  is  ordinarily  a  question  of  fact.  Burns  v.  Lane, 
138  Mass.  350. 


222  LAW  OF   EVIDENCE.  §  53c 

be  no  ratification  without  intelligent  action  as  to  the  law  as 
well  as  to  the  facts,  and,  accordingly,  that,  if  a  man  does 
not  know  that  he  has  a  right  to  disaffirm  a  contract  made  in 
infancy,  no  act  done  with  reference  to  that  contract  may  charge 
him  as  by  ratification.472  By  the  better-reasoned  opinions, 
however,  the  contrary  view  is  taken.  The  right  to  disaffirm 
a  contract  made  in  infancy  is,  they  hold,  a  matter  of  law, 
of  which  all  men  are  conclusively  presumed  to  have  knowl- 
edge. A  man's  ignorance  of  the  law  in  this  respect  may  not, 
therefore,  be  proved;  and  accordingly,  by  promising,  either 
expressly  or  impliedly,  to  perform  a  contract  entered  into 
while  a  minor,  a  man  ratifies  the  contract,  and  makes  it  bind- 
ing upon  him  in  spite  of  the  fact  that,  in  truth,  he  does  not 
know  that  the  contract  is  voidable.473 

There  is  a  conflict  in  regard  to  this  same  question  in  its 
.relation  to  contracts  made  by  persons  non  compotes  mentis. 

472Harmer  v.  Killing,  5  Esp.  102;  Tucker's  Lessee  v.  Moreland,  10 
Pet.  (U.  S.)  58,  76;  Burdett  v.  Williams,  30  Fed.  697;  Sayles  v. 
Christie,  187  111.  420;  Fetrow  v.  Wiseman,  40  Ind.  148;  Thing  v.  Lib- 
bey,  16  Me.  55,  57;  Trader  v.  Lowe,  45  Md.  1;  Baker  v.  Kennett, 
54  Mo.  82;  Bresee  v.  Stanly,  119  N.  C.  278;  Turner  v.  Gaither,  83 
N.  C.  357;  Hinely  v.  Margaritz,  3  Pa.  428;  Curtin  v.  Patton,  11  Serg. 
&  R.  (Pa.)  305;  Norris  v.  Vance,  3  Rich.  Law  (S.  C.)  165;  Reed 
v.  Boshears,  4  Sneed  (Tenn.)  117.  See,  however,  Ogborn  v.  Hoffman, 
52  Ind.  439. 

The  presumption  of  fact  is  that  the  former  infant  is  aware  of  his 
rights.  Hatch  v.  Hatch's  Estate,  60  Vt.  160. 

473  American  Mortg.  Co.  v.  Wright,  101  Ala.  658;  Bestor  v.  Hickey, 
71  Conn.  181;  Middleton  v.  Hoge,  5  Bush  (Ky.)  478,  490;  Morse  v. 
Wheeler,  4  Allen  (Mass.)  570,  overruling  Smith  v.  Mayo,  9  Mass. 
€2,  64,  and  Ford  v.  Phillips,  1  Pick.  (Mass.)  202,  203;  Taft  v.  Ser- 
geant, 18  Barb.  (N.  Y.)  320;  Anderson  v.  Soward,  40  Ohio  St.  325. 
See,  also,  Bentley  v.  Greer,  100  Ga.  35;  Ihley  v.  Padgett,  27  S.  C.  304. 
In  Owen  v.  Long,  112  Mass.  403,  there  is  a  slight  implication  to  the 
contrary,  but  the  point  was  not  necessarily  involved  in  the  decision, 
and  it  cannot  be  thought  that  the  court  there  intended  to  overrule,  with- 
out mention,  the  previous  extended  and  well-reasoned  opinion  given  in 
Morse  v.  Wheeler,  supra. 


§  54  LAW-  223 

Some  courts  hold  that  ignorance  of  the  right  to  disaffirm  the 
contract  upon  recovery  of  mental  ability  prevents  a  ratifica- 
tion,474 while  other  courts  take  the  contrary  and  better  opin- 
ion.475 

With  reference  to  cestuis  que  trustent  it  is  held  that  they 
arc  not  bound  as  by  ratification  of  an  unauthorized  invest- 
ment of  the  trust  funds  unless  they  were  first  fully  apprised 
of  their  right  to  avoid  the  transaction.476 

—  Legality  of  contract.  As  to  the  effect  of  this  so-called 
presumption  on  the  legality  of  contracts,  it  may  be  said 
that  if  an  agreement  has  an  unlawful  object,  and  the  parties 
are  fully  acquainted  with  the  facts  entering  into  the  trans- 
action, the  compact  is  void,  even  though,  through  ignorance 
or  mistake  of  the  law  governing  the  matter,  the  parties  do 
not  know  of  the  illegality,  or  intend  to  break  the  law.  Ig- 
norance or  mistake  of  law  does  not  excuse  them,  so  as  to  give 
effect  to  their  agreement.477 

§  54.    Terms  of  foreign  law. 

It  will  be  seen  that  the  courts  cannot  take  judicial  notice 
of  the  laws  of  a  foreign  state,  whence  it  follows  that  they 
must  be  proved  as  matter  of  fact.478  In  aid  of  such  proof, 
certain  presumptions  as  to  the  terms  of  foreign  laws  are  in 
some  cases  indulged  by  the  domestic  courts.479  These  presump- 

4T4  Eaton  v.  Eaton,  37  N.  J.  Law,  108,  119. 

475  Arnold  v.  Richmond  Iron  Works,  1  Gray  (Mass.)  434. 

476  Adair  v.  Brimmer,  74  N.  Y.  539. 

47THammon,  Cont.  §  249;  Waugh  v.  Morris,  L.  R.  8  Q.  B.  202,  208; 
Wilkinson  v.  Loudonsack,  3  Maule  &  S.  117,  126;  Daniels  v.  Barney,  22 
Ind.  207;  Saratoga  County  Bank  v.  King,  44  N.  Y.  87,  92. 

478  Section  105 (a),  infra. 

Presumption  of  knowledge  of  foreign  law,  see  note  451,  supra. 

479  Sister  states  of  the  Union,  as  well  as  England,  are  foreign  states, 


224  LAW   OF   EVIDENCE. 

tions  are  not  rules  governing  in  case  of  conflict  of  laws,  in  the 
strict  sense  of  that  term.480  They  all  assume  that  the  rights 
and  liabilities  of  the  parties  were  created  with  reference  to 
the  law  of  a  foreign  state,  so  that,  if  that  law  were  proved, 
it,  in  preference  to  the  domestic  law,  would  properly  be  ap- 
plied to  the  case  at  bar. 

The  cases  dealing  with  these  presumptions  are  to  be  dis*- 
tinguished  in  two  respects :  First,  as  to  whether  the  prestnnp- 
tion  affects  common  law  or  statutory  law;  and,  second,  as  to 
whether  or  not  a  common  system  of  judicature  (that  is,  a» 
to  whether  or  not  the  common  law  or  the  Roman  law)  prevails 
in  the  foreign  state  and  the  state  of  the  forum.  And  it  is  apt 
to  observe  in  this  connection  that  the  domestic  courts  will 
take  judicial  notice  of  whether  or  not  the  system  of  judica- 
ture which  it  administers  prevails  in  a  particular  foreign 

within  the  meaning  of  the  rule  giving  rise  to  these  presumptions. 
Wickersham  v.  Johnston,  104  Cal.  407,  43  A.  S.  R.  118. 

It  will  be  seen  that  foreign  law,  once  ascertained  in  the  domestic 
courts,  is  presumed  to  continue  the  same  until  evidence  to  the  con- 
trary is  adduced.  Section  105 (b),  infra. 

•iso  Leaving,  for  the  moment,  the  subject  under  discussion,  it  may  be 
noted  that  there  is  a  so-called  presumption  which  the  courts  sometimes 
employ  in  determining  whether  the  lex  loci  contractus  or  the  lex  solu- 
tionis  applies  to  the  case  in  hand.  If  a  contract  is  to  be  wholly  per- 
formed in  a  foreign  state,  a  presumption  is  said  to  arise  that  the  par- 
ties intended  that  their  rights  and  liabilities  under  the  agreement 
should  be  governed  by  the  law  of  that  state.  Hammon,  Cont.  §  261; 
Robinson  v.  Bland,  2  Burrow,  1077;  Hawley  v.  Bibb,  69  Ala.  52;  Lewis 
v.  Headley,  36  111.  433,  87  A.  D.  227;  Bigelow  v.  Burnham,  90  Iowa, 
300,  48  A.  S.  R.  442;  Tyler  v.  Trabue,  8  B.  Mon.  (Ky.)  306;  De  Sobry 
v.  De  Laistre,  2  Har.  &  J.  (Md.)  191,  3  A.  D.  535;  Martin  v.  Martin,  1 
Smedes  &  M.  (Miss.)  176;  Hill  v.  Spear,  50  N.  H.  253,  9  A.  R.  205;  Ormes 
v.  Dauchy,  82  N.  Y.  443,  37  A.  R.  583;  Com.  v.  Bassford,  6  Hill  (N.  Y.) 
526;  Tenant  v.  Tenant,  110  Pa.  478;  Cent.  Trust  Co.  v.  Burton,  74  Wis. 
329.  This  matter,  however,  has  nothing  to  do  with  the  presumptions 
under  discussion  in  the  text.  See,  generally,  7  Current  Law,  680. 


§  54a  LAW.  225 

state,481  and  also  of  whether  or  not  the  common  law  of  the 
forum  has  been  abrogated  or  modified  by  statute.482 

(a)  Common  law.  First,  of  the  common  law,  in  its  broad 
sense,  unaffected  by  statute.  In  the  absence  of  evidence  of 
the  law  of  a  foreign  state,  it  is  presumed  to  coincide  with  the 
common  law  of  the  forum,483  unless  different  systems  of  judica- 

• 

48i  See  §  105  (b),  infra. 

It  has  been  held  in  Maine  that  there  is  no  presumption  that  the  com- 
mon law  prevails  in  New  Brunswick.  Owen  v.  Boyle,  15  Me.  147,  32 
A.  D.  143. 

«2  See  §  100 (b),  infra. 

<83  Administration.  Newton  v.  Cocke,  10  Ark.  169 ;  Rogers  v.  Zook, 
86  Ind.  237;  Peterson  v.  Chemical  Bank,  32  N.  Y.  21,  88  A.  D.  298. 

Carriers.  Eureka  Springs  R.  v.  Timmons,  51  Ark.  459;  Hudson  v. 
N.  P.  R.  Co.,  92  Iowa,  231,  54  A.  S.  R.  550;  East  Omaha  St.  R.  Co.  v. 
Godola,  50  Neb.  906. 

Champerty.  Miles  v.  Collins,  1  Mete.  (Ky.)  308;  Thurston  v.  Percival, 
1  Pick.  (Mass.)  415. 

Conditions  precedent.    Musser  v.  Stauffer,  178  Pa.  99. 

Conveyances.    Robards  v.  Marley,  80  Ind.  185. 

Covenants.    Bethell  v.  Bethell,  92  Ind.  318. 

Death  by  wrongful  act.  Palfrey  v.  P.,  S.  &  P.  R.  Co.,  4  Allen  (Mass.) 
65. 

Devolution  of  property.    Reese  v.  Harris,  27  Ala.  301. 

Gambling  contracts.  Harvey  v.  Merrill,  150  Mass.  1,  15  A.  S.  R.  159; 
Mohr  v.  Miesen,  47  Minn.  228;  Ruse  v.  Mut.  B.  L.  Ins.  Co.,  23  N.  Y. 
516,  522. 

Gifts.    Connor  v.  Trauick's  Adm'r,  37  Ala.  289,  79  A.  D.  58. 

Judgments.  Thompson  v.  Monrow,  2  Cal.  99,  56  A.  D.  318;  Engstrand 
v.  Kleffman,  86  Minn.  403,  51  A.  S.  R.  359;  Holmes  v.  Broughton,  10 
Wend.  (N.  Y.)  75,  25  A.  D.  536;  Thomas  v.  Pendleton,  1  S.  D.  150,  36 
A.  S.  R.  726;  Osborn  v.  Blackburn,  78  Wis.  209,  23  A.  S.  R.  400. 

Marriage  and  divorce.  Trimble  v.  Trimble,  2  Ind.  76;  Sneed  v. 
Ewing,  5  J.  J.  Marsh.  (Ky.)  460,  22  A.  D.  41,  69;  Com.  v.  Kenney,  120 
Mass.  387;  Com.  v.  Graham,  157  Mass.  73,  34  A.  S.  R.  255;  Kelley  v. 
Kelley,  161  Mass.  Ill,  42  A.  S.  R.  389;  People  v.  Loomis,  106  Mich.  250; 
Jones  v.  Reddick,  79  N.  C.  290;  State  v.  Shattuck,  69  Vt.  403,  60  A.  S.  R. 
936. 

Married  women.  Holthaus  v.  Farris,  24  Kan.  784;  Benne  v.  Schnecko, 
100  Mo.  250;  Cressey  v.  Tatom,  9  Or.  541. 

Hammon,   Ev. — 15. 


226  LAW   OF   EVIDENCE.  §   54a 

ture  prevail  in  the  foreign  state  and  the  domestic  state,  in 
which  case  the  presumption  does  not  arise.484  In  either  event, 
however,  the  result  is  the  same:  the  rights  of  the  parties  arc 
adjusted,  if  at  all,  necessarily  by  the  law  of  the  forum,  so 
that  the  question  whether  a  presumption  arises  in  either  ol' 
these  cases  is  purely  academical.  The  so-called  presumption 
is  therefore  merely  a  rule  of  remedial  law  to  the  effect  that, 
in  the  absence  of  evidence  of  a  foreign  law  which  would  other- 
Master  and  servcmt.  Ala.  G.  S.  R.  Co.  v.  Carroll,  97  Ala.  126,  38  A.  S. 
R.  163;  Baltimore  &  0.  S.  W.  R.  Co.  v.  Reed,  158  Ind.  25,  56  L.  R.  A. 
468;  St.  Louis  &  S.  F.  R.  Co.  v.  Weaver,  35  Kan.  412,  57  A.  R.  176;  Cran- 
dall  v.  G.  N.  R.  Co.,  83  Minn.  190,  85  A.  S.  R.  458;  Burdict  v.  Mo.  Pac. 
R.  Co.,  123  Mo.  221,  45  A.  S.  R.  528. 

Negotiable  instruments.  Dunn  v.  Adams,  1  Ala.  527,  35  A.  D.  42; 
State  v.  Cobb,  64  Ala.  127,  156;  Bemis  v.  McKenzie,  13  Fla.  553;  Pattillo 
v.  Alexander,  96  Ga.  60,  29. L.  R.  A.  616;  Crouch  v.  Hall,  15  111.  263; 
Dubois  v.  Mason,  127  Mass.  37,  34  A.  R.  335;  Schultz  v.  Howard,  63 
Minn.  196,  56  A.  S.  R.  470. 

Payment.     Ely  v.  James,  123  Mass.  36. 

Vendor's  lien.    Hill  v.  Grigsby,  32  Cal.  55. 

By  the  better  opinion,  the  presumption  of  the  existence  of  the  com- 
mon law  in  a  foreign  state  precludes  any  presumption  that  the  statutes 
of  the  two  states  are  the  same.  If,  therefore,  the  common  law  does 
not  give  a  party  a  right  and  a  remedy,  and  the  law  of  a  foreign  state 
properly  governs  the  case,  he  must  prove  the  existence  of  a  foreign  stat- 
ute entitling  him  to  relief.  The  fact  that  such  a  statute  exists  in  the 
state  of  the  forum  does  not  aid  him.  See  page  229,  infra. 

48*peet  v.  Hatcher,  112  Ala.  514,  57  A.  S.  R.  45;  Brown  v.  Wright, 
58  Ark.  20,  21  L.  R.  A.  467;  Du  Val  v.  Marshall,  30  Ark.  230;  Norris  v. 
Harris,  15  Cal.  226;  Flato  v.  Mulhall,  72  Mo.  522;  Savage  v.  O'Neil,  44 
N.  Y.  298.  And  see  St.  Sure  v.  Lindsfelt,  82  Wis.  346,  33  A.  S.  R.  50. 
Contra,  Hynes  v.  McDermott,  82  N.  Y.  41,  37  A.  R.  538. 

It  is  not  presumed  that  the  law  merchant  as  enforced  in  all  its  de- 
tails in  Massachusetts  prevails  in  Turkey.  Aslanian  v.  Dostumian,  174 
Mass.  328,  75  A.  S.  R.  348.  It  is  presumed  to  prevail  in  Louisiana, 
however.  Cribbs  v.  Adams,  13  Gray  (Mass.)  597. 

It  has  been  suggested  that  the  presumption  is  that  a  man  Is  every- 
where entitled  to  personal  freedom  and  security,  regardless  of  similar- 
ity in  the  systems  of  judicature.  Whitford  v.  P.  R.  Co.,  23  N.  Y.  465; 
Leonard  v.  Columbia  S.  N.  Co.,  84  N.  Y.  48,  38  A.  R.  491.  And  acts 


§  54b  LAW-  227 

wise  govern  the  rights  of  the  parties,  those  rights  shall  be 
determined  by  the  law  of  the  forum.485 

(b)  Statutory  law.  Second,  of  statutory  law.  The  cases 
falling  under  this  head  are  in  conflict.486  By  the  better  opinion, 
if  the  law  of  the  forum,  in  its  application  to  the  point  in  ques- 
tion, is  governed  by  statute,  the  presumption  of  identity  of 
foreign  and  domestic  law  does  not  arise.  It  is  not  presumed 
that  a  foreign  state  has  enacted  statutes  like  those  prevailing 

which  are  crimes  in  the  state  of  the  forum  as  being  malum  in  se  will 
be  presumed  to  be  crimes  in  all  civilized  countries,  without  reference 
to  the  system  of  judicature  there  prevailing.  Cluff  v.  Mut.  B.  L.  Ins. 
Co.,  13  Allen  (Mass.)  308.  It  is  also  presumed  that  a  marriage  by 
consent  of  capable  parties  is  valid  everywhere  without  any  formalities. 
Laurence  v.  Laurence,  164  111.  367;  Hutchins  v.  Kimmell,  31  Mich.  126, 
18  A.  R.  164.  With  stronger  reason  it  is  presumed  that  a  marriage  is 
valid  everywhere  if  it  is  solemnized  by  a  priest  and  followed  by  cohabi- 
tation. Com.  v.  Kenney,  120  Mass.  387. 

486  Lloyd  v.  Guibert,  L.  R.  1  Q.  B.  115,  129;  Feet  v.  Hatcher,  112  Ala. 
514,  57  A.  S.  R.  45;  Cox  v.  Morrow,  14  Ark.  603,  613;  Norris  v.  Harris, 
15  Cal.  226;  Simms  v.  Southern  Exp.  Co.,  38  Ga.  129;  Dannelli  v.  Dan- 
nelli's  Adm'r,  4  Bush  (Ky.)  51;  Carpenter  v.  G.  T.  R.  Co.,  72  Me.  388, 
39  A.  R.  340;  Monroe  v.  Douglass,  5  N.  Y.  447;  McBride  v.  Farmers' 
Bank,  26  N.  Y.  450,  457;  Savage  v.  O'Neil,  44  N.  Y.  298;  Hynes  v.  Mc- 
Dermott,  82  N.  Y.  41,  37  A.  R.  538;  James  v.  James,  81  Tex.  373,  381. 
And  see  Norman  v.  Norman,  121  Cal.  620,  42  L.  R.  A.  343,  346. 

As  to  whether,  in  this  event,  the  rights  of  the  parties  shall  be  deter- 
mined by  the  common  law  of  the  forum,  or  by  its  statutory  law,  see  page 
229,  infra. 

Where  the  foreign  law  is  relied  on,  not  as  furnishing  a  rule  for  the 
adjustment  of  the  rights  of  the  parties,  but  merely  as  a  collateral  cir- 
cumstance upon  which  an  argument  is  founded,  as  where,  for  instance, 
It  has  a  bearing  on  the  construction  of  a  contract  in  suit,  then  the 
question  whether  a  presumption  exists  is  not  merely  academical,  but 
vital,  so  far  as  the  validity  of  the  argument  is  concerned.  Aslanian 
v.  Dostumian,  174  Mass.  328,  *75  A.  S.  R.  348. 

486  A  conflict  exists,  not  only  between  the  courts  of  different  states, 
but  also,  in  some  jurisdictions,  between  different  cases  decided  in  the 
same  state.  This  seems  to  be  true  of  Arkansas,  California,  Minnesota, 
South  Dakota,  and  Wisconsin.  The  cases  are  cited  in  the  following 
notes. 


228  LAW   OF   EVIDENCE. 

in  the  forum.487     So  far  as  the  rule  itself  is  concerned,  it  is 
the  same,  whether  or  not  a  common  system  of  judicature  pre 

487  Carriers.  The  Henry  B.  Hyde,  82  Fed.  681;  Carpenter  v.  G.  T.  R. 
Co.,  72  Me.  388,  39  A.  R.  340;  Meuer  v.  C.,  M.  &  St.  P.  R.  Co.,  11  S.  D. 
94,  74  A.  S.  R.  774. 

Corporations.    Vanderpoel  v.  Gorman,  140  N.  Y.  563,  37  A.  S.  R.  601. 

Costs.     Kelley  v.  Kelley,  161  Mass.  Ill,  42  A.  S.  R.  389. 

Criminal  law.     Bundy  v.  Hart,  46  Mo.  460,  2  A.  R.  525. 

Death  by  wrongful  act.  Louisville  &  N.  R.  Co.  v.  Williams,  113  Ala. 
402;  Allen  v.  P.  &  C.  R.  Co.,  45  Md.  41;  Myers  v.  C.,  St.  P.,  M.  &  O. 
R.  Co.,  69  Minn.  476,  65  A.  S.  R.  579;  McDonald  v.  Mallory,  77  N.  Y. 
546,  33  A.  R.  664;  Leonard  v.  Columbia  S.  N.  Co.,  84  N.  Y.  48,  38  A.  R. 
491  (semble). 

Frauds,  statute  of.  Miller  v.  Wilson,  146  111.  523,  37  A.  S.  R.  186; 
Ellis  v.  Maxson,  19  Mich.  186,  2  A.  R.  81;  Houghtaling  v.  Ball,  19  Mo. 
84,  59  A.  D.  331. 

Gaming  and  lottery  contracts.  Peet  v.  Hatcher,  112  Ala.  514,  57  A.  S. 
R.  45;  Flagg  v.  Baldwin,  38  N.  J.  Eq.  219,  48  A.  R.  308;  Ormes  v. 
Dauchy,  82  N.  Y.  443,  37  A.  R.  583;  Harris  v.  White,  81  N.  Y.  532; 
Gooch  v.  Faucette,  122  N.  C.  270,  39  L.  R.  A.  835. 

Interest.  Thompson  v.  Monrow,  2  Cal.  99,  56  A.  D.  318  (semble) ; 
Kermott  v.  Ayer,  11  Mich.  181. 

Justices  of  the  peace.     Crake  v.  Crake,  18  Ind.  156. 

Limitation  of  actions.  Eingartner  v.  111.  Steel  Co.,  94  Wis.  70,  34  L. 
R.  A.  503  (semble). 

Marriage  and  divorce.  Kelley  v.  Kelley,  161  Mass.  Ill,  42  A.  S.  R. 
389;  State  v.  Shattuck,  69  Vt.  403,  60  A.  S.  R.  936. 

Married  women.  Birmingham  W.  W.  Co.  v.  Hume,  121  Ala.  168,  77 
A.  S.  R.  43;  Cahalan  v.  Monroe,  70  Ala.  271;  Hydrick  v.  Burke,  30  Ark. 
124;  Tinkler  v.  Cox,  68  111.  119;  Lichtenberger  v.  Graham,  50  Ind.  288; 
State  v.  Clay,  100  Mo.  571;  Savage  v.  O'Neil,  44  N.  Y.  298. 

Master  and  servant.  Baltimore  &  O.  S.  W.  R.  Co.  v.  Read,  158  Ind. 
87,  56  L.  R.  A.  468. 

Negotiable  instruments.  Dunn  v.  Adams,  1  Ala.  527,  35  A.  D.  42; 
Lucas  v.  Ladew,  28  Mo.  342. 

Seduction.     Buckles  v.  Ellers,  72  Ind.  220,  37  A.  R.  156. 

Sunday  contracts.  Murphy  v.  Collins,  121  Mass.  6;  Adams  v.  Gay, 
19  Vt.  358. 

Survival  of  actions.    O'Reilly  v.  N.  Y.  &  N.  E.  R.  Co.,  16  R.  I.  388. 

Trusts.  First  Nat.  Bank  v.  Nat.  Broadway  Bank,  156  N.  Y.  459,  42 
L.  R.  A.  139. 


§  54b  LAW-  229 

vails  in  the  two  countries;488  but  in  adjusting  the  rights  of 
the  parties,  the  question  of  the  identity  of  the  systems  of 
judicature  becomes  material.  If  the  systems  are  the  same, 
the  presumption  is,  as  we  have  seen,  that  the  common  law, 
unaffected  by  statute,  prevails  in  the  foreign  state,  and,  there 
being  no  presumption  of  identity  of  statutory  law,  the  rights 
of  the  parties  are  adjusted  according  to  the  common  law  as 
it  would  prevail  in  the  forum  in  the  absence  of  statute.489 

Usury.  Grider  v.  Driver,  46  Ark.  50;  White  v.  Friedlander,  35  Ark. 
52;  Smith  v.  Whi taker,  23  111.  367;  Smith  v.  Muncie  Nat.  Bank,  29  Ind. 
158;  Cutler  v.  Wright,  22  N.  Y.  472;  Commission  Co.  v.  Carroll,  104 
Tenn.  489;  Hull  v.  Augustine,  23  Wis.  383. 

488  Whitford  v.  P.  R.  Co.,  23  N.  Y.  465.     Contra,  Peet  v.  Hatcher,  112 
Ala.  514,  57  A.  S.  R.  45. 

489  UNITED  STATES:     The  Henry  B.  Hyde,  82  Fed.  681. 

ALABAMA:  Cahalan  v.  Monroe,  70  Ala.  271;  Connor  v.  Trawick's 
Adm'r,  37  Ala.  289,  79  A.  D.  58;  Birmingham  W.  W.  Co.  v.  Hume,  121 
Ala.  168,  77  A.  S.  R.  43;  Dunn  v.  Adams,  1  Ala.  527,  35  A.  D.  42. 

ARKANSAS:  White  v.  Friedlander,  35  Ark.  52;  Grider  v.  Driver,  46 
Ark.  50;  Hydrick  v.  Burke,  30  Ark.  124. 

CALIFORNIA:     Thompson  v.  Monrow,  2  Cal.  99,  56  A.  D.  318  (semble). 

ILLINOIS:  Miller  v.  Wilson,  146  111.  523,  37  A.  S.  R.  186;  Smith  v. 
Whitaker,  23  111.  367;  Tinkler  v.  Cox,  68  111.  119. 

INDIANA:  Smith  v.  Muncie  Nat.  Bank,  29  Ind.  158;  Lichtenberger  v. 
Graham,  50  Ind.  288. 

MASSACHUSETTS:  Murphy  v.  Collins,  121  Mass.  6;  Kelley  v.  Kelley, 
161  Mass.  Ill,  42  A.  S.  R.  389. 

MICHIGAN:     Ellis  v.  Maxson,  19  Mich.  186,  2  A.  R.  81. 

MINNESOTA:  Myers  v.  C.,  St.  P.,  M.  &  O.  R.  Co.,  69  Minn.  476,  65 
A.  S.  R.  579. 

MISSOURI:  Lucas  v.  Ladew,  28  Mo.  342;  State  v.  Clay,  100  Mo.  571; 
Bundy  v.  Hart,  46  Mo.  460,  2  A.  R.  525. 

NEW  YORK:  Cutler  v.  Wright,  22  N.  Y.  472  (semble);  First  Nat. 
Bank  v.  Nat.  Broadway  Bank,  156  N.  Y.  459,  42  L.  R.  A.  139. 

TENNESSEE:     Commission  Co.  v.  Carroll,  104  Tenn.  489. 

VERMONT:     State  v.  Shattuck,  69  Vt.  403,  60  A.  S.  R.  936. 

WISCONSIN:  Hull  v.  Augustine,  23  Wis.  383;  Eingartner  v.  111.  Steel 
Co.,  94  Wis.  70,  34  L.  R.  A.  503. 


230  LAW   OF   EVIDENCE.  §   54b 

If,  however,  the  systems  of  judicature  prevailing  in  the  two 
states  are  not  the  same,  a  presumption  that  the  common  law 
obtains  in  the  foreign  state  does  not  arise,  as  we  have  seen, 
and  the  rights  of  the  parties  are  therefore  necessarily  adjusted 
according  to  the  law  of  the  forum,  even  though  that  law  con- 
sists of  statutes.490 

These  views,  however,  do  not  prevail  in  all  states.  In  some 
jurisdictions  it  is  held  that,  in  the  absence  of  evidence  on 
the  subject,  the  presumption  is  that  the  statutory  law  of 
another  state  is  identical  with  that  of  the  state  of  the  forum, 
and  that  the  rights  of  the  parties  are  therefore  in  all  cases, 
without  reference  to  whether  or  not  the  same  system  of  judi- 
cature prevails  in  the  two  states,  to  be  adjusted  by  the  law 
of  the  forum,  even  though  it  consists  of  statutes.491  And  the 
same  result  is  sometimes  reached  without  reference  to  the 
existence  of  any  presumption;  the  ground  of  decision  being 

The  rights  of  the  plaintiff,  assuming  that  he  has  rights  at  common, 
law,  will  not  be  enforced  according  to  that  law,  however,  if  the  trans- 
action in  suit  is  illegal  by  statute  of  the  forum.  Hill  v.  Wilker,  41  Ga. 
449,  5  A.  R.  540  (semble) ;  Flagg  v.  Baldwin,  38  N.  J.  Eq.  219,  48  A.  R. 
308;  Gooch  v.  Faucette,  122  N.  C.  270,  39  L.  R.  A.  835;  Gist  v.  W.  U. 
Tel.  Co.,  45  S.  C.  344,  55  A.  S.  R.  763,  771.  Contra,  Peet  v.  Hatcher, 
112  Ala.  514,  57  A.  S.  R.  45  (semble). 

490  peet  v.  Hatcher,  112  Ala.  514,  57  A.  S.  R.  45;  Brown  v.  Wright,  58 
Ark.  20,  21  L.  R.  A.  467;  Atkinson  v.  Atkinson,  15  La.  Ann.  491;  Flato 
v.  Mulhall,  72  Mo.  522;  Savage  v.  O'Neil,  44  N.  Y.  298. 

The  decision  in  the  following  cases  might  be  justified  on  this  theory: 
Cavallaro  v.  Tex.  &  P.  R.  Co.,  110  Cal.  348,  52  A.  S.  R.  94;  Norris  v. 
Harris,  15  Cal.  226;  Roehl  v.  Porteous,  47  La.  Ann.  1582;  St.  Sure  v. 
Lindsfelt,  82  Wis.  346,  33  A.  S.  R.  50. 

491  Administration.    Wickersham  v.  Johnston,  104  Cal.  407,  43  A.  S. 
R.  118;  Green  v.  Rugely,  23  Tex.  539   (semble). 

Carriers.  Cavallaro  v.  Tex.  &  P.  R.  Co.,  110  Cal.  348,  52  A.  S.  R.  94; 
Meuer  v.  C.,  M.  &  St.  P.  R.  Co.,  5  S.  D.  568,  49  A.  S.  R.  898. 

Corporations.    German  Bank  v.  American  F.  Ins.  Co.,  83  Iowa,  491,. 


§  54b  LAW.  231 

that,  in  the  absence  of  evidence  of  the  foreign  law  which 
would  otherwise  govern  the  case,  the  rights  of  the  parties  are 
necessarily  adjusted  according  to  the  law  of  the  forum,  even 
though  it  be  statutory.492 

32  A.  S.  R.  316;  Chapman  v.  Brewer,  43  Neb.  890,  47  A.  S.  R.  779;  Tern- 
pel  v.  Dodge,  89  Tex.  68. 

Fraudulent  conveyances.     Hickman  v.  Alpaugh,  21  Cal.  225. 

Guardians.     Norris  v.  Harris,  15  Cal.  226. 

Insurance.  Goodwin  v.  Provident  S.  L.  A.  Ass'n,  97  Iowa,  226,  59 
A.  S.  R.  411;  Fisher  v.  Donovan,  57  Neb.  361,  44  L.  R.  A.  383. 

Interest.  Cooper  v.  Reaney,  4  Minn.  528;  Fitzgerald  v.  Fitzgerald 
&  M.  Const.  Co.,  41  Neb.  374,  472;  Nat.  G.  A.  Bank  v.  Lang,  2  N.  D. 
66  (semble). 

Judgments.  Thomas  v.  Pendelton,  1  S.  D.  150,  36  A.  S.  R.  726;  Os- 
born  v.  Blackburn,  78  Wis.  209,  23  A.  S.  R.  400  (semble). 

Limitation  of  actions.  Scroggin  v.  McClelland,  37  Neb.  644,  40  A.  S. 
R.  520;  Evans  v.  Cleary,  125  Pa.  204,  11  A.  S.  R.  886. 

Marriage.    Haggin  v.  Haggin,  35  Neb.  375. 

Married  women.  Bellinger  v.  Gallagher,  144  Pa.  205;  James  v.  James, 
81  Tex.  373,  381  (semble). 

Mortgages.  Hall  v.  Pillow,  31  Ark.  32;  Roehl  v.  Porteous,  47  La. 
Ann.  1582;  Morris  v.  Hubbard,  10  S.  D.  259  (semble). 

Negotiable  instruments.    Walsh  v.  Dart,  12  Wis.  635. 

Notaries  public.  Neese  v.  Farmers'  Ins.  Co?,  55  Iowa,  604;  Goodnow 
v.  Litchfield,  67  Iowa,  691;  Welton  v.  Atkinson,  55  Neb.  674,  70  A.  S.  R. 
416. 

Notice  as  condition  precedent  to  suit.  Burgess  v.  W.  U.  Tel.  Co.,  92 
Tex.  125,  71  A.  S.  R.  833. 

Service  of  process. '  Rape  v.  Heaton,  9  Wis.  328,  76  A.  D.  269. 

Sunday  contracts.  Hill  v.  Wilker,  41  Ga.  449,  5  A.  R.  540;  Sayre  v. 
Wheeler,  31  Iowa,  112,  32  Iowa,  559;  Brimhall  v.  Van  Campen,  8  Minn. 
13,  82  A.  D.  118. 

402  Cox  v.  Morrow,  14  Ark.  603,  613;  Palmer  v.  A.,  T.  &  S.  F.  R. 
Co.,  101  Cal.  187;  Mortimer  v.  Marder,  93  Cal.  172;  Crafts  v.  Clark, 
38  Iowa,  237;  Wheeler  v.  Constantine,  39  Mich.  62,  33  A.  R.  355; 


232  LAW   OF   EVIDENCE.  £   55 

M.  LEGALITY. 

§  55.  The  presumption  of  legality  is  to  be  distinguished 
from  the  presumptions  of  innocence  and  of  regularity,  which 
are  considered  in  other  connections.493 

Generally  speaking,  the  courts  refuse  to  indulge  in  any  pre- 
sumption that  the  law  has  been  violated494  or  will  be  violated 
in  the  future495  by  any  particular  person  in  any  particular 

Gist  v.  W.  U.  Tel.  Co.,  45  S.  C.  344,  55  A.  S.  R.  763;  Meuer  v.  C.,  M. 
&  St.  P.  R.  Co.,  11  S.  D.  94,  74  A.  S.  R.  774.  And  see  Bellinger  v. 
Gallagher,  144  Pa.  205;  James  v.  James,  81  Tex.  373,  3-81. 

493  Presumption  of  fraud,  duress,  and  undue  influence,  see  §§  43-45, 
supra.     Presumption  of  regularity,   see  §§   23-30,  supra.     Presumption 
of  innocence,  see  §§  49,  50,  supra. 

494  Presumption  against  abandonment  of  family.     Jennison  v.   Hap- 
good,  10  Pick.   (Mass.)   77,  98.     See,  however,  State  v.  Schweitzer,  57 
Conn.    532,    6   L.   R.   A.   125.     Against   contempt   of   court.    Scholes   v. 
Hilton,   10   Mees.   &   W.    15.     That  candidate   was   qualified.     King  v. 
Hawkins,  10  East,  211,  216.     Against  violation  of  National  Banking  Act. 
Richards  v.  Kountze,  4  Neb.  200.    Against  nonpayment  of  corporate  tax. 
Peck  v.  Elliott,  47  U.  S.  App.  605,  38  L.  R.  A.  616.     That  foreign  corpo- 
ration has  complied  with  statutory  conditions  precedent  to  doing  busi- 
ness.    1  Clark  &  M.  Corp.  §  847;  Knapp,  S.  &  C.  Co.  v.  Nat.  M.  F.  Ins. 
Co.,  30  Fed.  607;   Nelms  v.  Edinburgh  A.  L.  Mortg.  Co.,  92  Ala.  157; 
Sprague  v.  Cutler  &  S.  L.  Co.,  106  Ind.  242;  Fidelity,  etc.,  Co.,  v.  Eick- 
hoff,  63  Minn.  170,  56  A.  S.  R.  464;  American  Ins.  Co.  v.  Smith,  73  Mo. 
368.     See,  however,  Wash.  County  M.  Ins.  Co.  v.  Chamberlain,  16  Gray 
(Mass.)  165. 

Presumption  against  perjury.  Matthews  v.  Lanier,  33  Ark.  91;  Hew- 
lett v.  Hewlett,  4  Edw.  Ch.  (N.  Y.)  7;  Jackson  v.  State,  33  Tex.  Cr.  R. 
281,  47  A.  S.  R.  30.  Against  illegal  sales  of  liquor.  Timson  v.  Moulton, 
3  Cush.  (Mass.)  269;  Jones  v.  McLeod,  103  Mass.  58;  Horan  v.  Weiler, 
41  Pa.  470."  Against  conversion  of  trust  funds  by  trustee.  Lincoln  v. 
Morrison,  64  Neb.  725,  57  L.  R.  A.  885;  State  v.  Edwards,  61  Neb.  181,  52 
L.  R.  A.  858;  State  v.  Foster,  5  Wyo.  199,  63  A.  S.  R.  47.  Against 
breach  of  trust  by  executor  or  administrator.  Brewster  v.  Striker,  2 
N.  Y.  19;  Gee  v.  Hicks,  Rich.  Eq.  Gas.  (S.  C.)  5. 

495  Brill  v.  St.  L.  Car  Co.,  80  Fed.  909;  American  T.  &  B.  Co.  v.  Boone, 
102  Ga.  202,  66  A.  S.  R.  167;  Lambert  v.  Alcorn,  144  111.  313,  330;  John- 


§  57  LEGALITY.  233 

respect,  and  the  burden  of  proving  the  unlawful  act  or  inten- 
tion rests,  accordingly,  on  the  party  who  alleges  it. 

§  56.    Agency. 

Ordinarily,  an  authority  to  commit  a  breach  of  the  law  is 
not  presumed,  in  the  absence  of  evidence  on  the  question.41"1 
Thus,  the  court  will  not  indulge  a  presumption  that  an  agent 
to  procure  evidence  has  authority  to  bribe  witnesses.407 

§  57.    Contracts. 

If  an  agreement  is  valid  on  its  face,  the  burden  of  showing 
its  illegality  is  upon  the  party  attacking  it.498  Thus,  if  an  ex- 
ecutory contract  for  the  purchase  and  sale  of  stocks  or  com- 
modities does  not  appear  on  its  face  to  be  a  mere  gambling 
transaction,  the  presumption  is  that  it  was  made  in  good 

son  v.  Farwell,  7  Me.  370,  375;  Linn  v.  Chambersburg,  160  Pa.  511,  25 
L.  R.  A.  217. 

490  Harding  v.  Greening,  8  Taunt.  42;  Com.  v.  Briant,  142  Mass.  463, 
56  A.  R.  707;  Farber  v.  Mo.  Pac.  R.  Co.,  116  Mo.  81,  20  L.  R.  A.  350; 
Staples  v.  Schmid,  18  R.  I.  224,  19  L.  R.  A.  824.  See,  however,  Rex  v. 
Almon,  5  Burrows,  2686,  2688;  Rex  v.  Walter,  3  Esp.  21. 

497  The  Queen's  Case,  2  Brod.  &  B.  302,  306;  Green  v.  Woodbury,  48 
Vt.  5. 

498Sissons  v.  Dixon,  5  Barn.  &  C.  758;  U.  S.  v.  Trans-Mo.  Freight 
Ass'n,  19  U.  S.  App.  36,  24  L.  R.  A.  73;  Bayles  v.  Kan.  P.  R.  Co.,  13  Colo. 
181,  5  L.  R.  A.  480;  Wehmann  v.  M.,  St.'  P.  &  S.  S.  M.  R.  Co.,  58  Minn. 
22;  Feldman  v.  Gambler,  26  N.  J.  Eq.  494;  Burdine  v.  Burdine's  Ex'r, 
98  Va.  515,  81  A.  S.  R.  741. 

Usury.  Abbott  v.  Stone,  172  111.  634,  64  A.  S.  R.  60;  Sutphen  v. 
Cushman,  35  111.  186;  Richards  v.  Purdy,  90  Iowa,  502,  48  A.  S.  R.  458. 

The  presumption  is  that  a  contract  or  conveyance  made  in  a  foreign 
state  conforms  to  the  law  of  that  state.  Cutler  v.  Wright,  22  N.  Y. 
472;  Sadler  v.  Anderson,  17  Tex.  245.  And  see  Miller  v.  Wilson,  146 
111.  523,  37  A.  S.  R.  186;  Wheeler  v.  Constantine,  39  Mich.  62,  33  A.  R. 
355. 

Presumption  as  to  foreign  marriage,  see  §  29,  supra. 


234  LAW  OF   EVIDENCE.  §  57 

faith,  with  a  mutual  intention  that  it  should  be  performed,  so 
that  the  burden  of  showing  illegality  by  establishing  a  con- 
trary intention  rests  on  the  party  asserting  it.499  If,  how- 
ever, a  contract  is  shown  to  fall  within  the  general  prohibition 
of  a  statute,  the  burden  of  bringing  it  within  an  exception  in 
the  act  rests  on  the  party  claiming  under  it.  Thus,  if  it  ap- 
pears that  the  contract  upon  which  the  action  is  brought  was 
made  on  Sunday,  in  violation  of  statute,  the  burden  of  show- 
ing that  it  was  a  work  of  charity  or  necessity,  and  consequent- 
ly within  the  exception  of  the  statute,,  rests  on  the  plaintiff.600 
It  is  said  that  if  a  contract  is  susceptible  of  two  construc- 
tions, by  one  of  which  it  is  illegal,  and  by  the  other  legal, 
the  presumption  is  that  the  parties  intended  it  in  a  lawful 
sense,  and  it  will  be  given  effect  accordingly.501  This  so- 
called  presumption  is  not  truly  such,  being  in  reality  a  rule  of 
construction  expressed  in  the  indirect  form  of  a  presump- 
tion;502 and  it  will  be  applied  only  when  the  contract  is  sus- 
ceptible of  two  constructions.  If  the  intention  of  the  parties 
to  enter  into  an  illegal  contract  is  clear,  the  presumption  does 
not  arise,  and  the  agreement  will  accordingly  be  held  to  be 
invalid.503 

499  Ponder  v.  Jerome  Hill  Cotton  Co.,  100  Fed.  373;  Forsyth  Mfg.  Co. 
v.  Castlen,  112  Ga.  199;   Beadles  v.  McElrath,  85  Ky.   230;    Jones  v. 
Ames,  135  Mass.  431;  Mohr  v.  Miesen,  47  Minn.  228;  Crawford  v.  Spen- 
cer, 92  Mo.  498,  1  A.  S.  R.  745;  Story  v.  Salomon,  71  N.  Y.  420;- Williams 
v.  Connor,  14  S.  C.  621.     For  a  full  treatment  of  the  legality  of  con- 
tract dealings  in  futures,  see  Hammon,  Cont.  §  217. 

500  w.  U.  Tel.  Co.  v.  Topst,  118  Ind.  248,  3  L.  R.  A.  224;   Sayre  v. 
Wheeler,  32  Iowa,  559;  Troewert  v.  Decker,  51  Wis.  46,  37  A.  R.  808. 

BoiRobson  v.  Crew,  Cro.  Eliz.  705;  U.  S.  v.  Cent.  Pac.  R.  Co.,  118 
U.  S.  235;  Wyatt  v.  Larimer  &  W.  Irr.  Co.,  18  Colo.  298,  36  A.  S.  R. 
280;  Crittenden  v.  French,  21  111.  598;  Hunt  v.  Elliott,  80  Ind.  245, 
41  A.  R.  794;  Guernsey  v.  Cook,  120  Mass.  501;  Merrill  v.  Melchior^ 
30  Miss.  516;  Lorillard  v.  Clyde,  86  N.  Y.  384;  Curtis  v.  Gokey,  68  N. 
Y.  300;  Houlton  v.  Nichol,  93  Wis.  393,  57  A.  S.  R.  928. 

602  Hammon,  Cont.  §§  395-397. 


§  58b  LEGALITY.  235 

§  58.    Marriage. 

(a)  Legality  in  general.    If  a  marriage  in  fact  is  proved, 
whether  directly  or  by  circumstantial  evidence,  the  presump- 
tion is  that  it  is  legal.504     This  may  be  so,   even  where  a 
prior  marriage  between  one  of  the  parties  and  a  third  person 
is  shown.     It  is  often  presumed  that  the  former  spouse  was 
either  dead605  or  divorced500  at  the  time  of  the  second  mar- 
riage. 

(b)  Common-law  marriage — Cohabitation  and    repute.    A 
marriage  may  be  proved  by  direct  evidence,  as  where  a  cer- 
tificate of  marriage  is  produced,  or  an  eye  witness  testifies 
to  the  contract  or  the  ceremony;  or  it  may  be  established  by 
indirect  evidence,   as  where   circumstances  are  proved  from 
which  an  inference  may  be  drawn  that  the  parties  entered 
into  a  marriage  contract  or  ceremony.    A  common  form  of  in- 
direct or  circumstantial  evidence  of  marriage  is  that  which 
consists  of  evidence  that  the  parties  in  question  cohabited  as 
man  and  wife ;  that  they  declared  or  acknowledged  themselves 
as  such ;  that  they  were  generally  reputed  to  be  man  and  wife ; 
and  that  they  were  commonly  received  as  such,   especially 
among  friends  and  relatives.     These  circumstances  justify  the 
jury  in  finding  an  actual  marriage,  even  though  there  be  no 
direct  evidence  of  it.507     The  most  important  of  these  circum- 

803  stadhard  v.  Lee,  3  Best  &  S.  364;  Russell  v.  Allerton,  108  N.  Y. 
288,  292. 

004  Section  29,  eupra.' 

BOS  Section  62 (c),  infra. 

BOO  Section  35,  supra. 

BO?  Hervey  v.  Hervey,  2  W.  Bl.  877;  Moore  v.  Heineke,  119  Ala. 
627;  Costill  v.  Hill,  55  N.  J.  Eq.  479;  O'Gara  v.  Eisenlohr,  38  N.  Y. 
296;  In  re  Taylor,  9  Paige  (N.  Y.)  611;'  Fenton  v.  Reed,  4  Johns.  (N. 
Y.)  52,  4  A.  D.  244;  Jenkins  v.  Bisbee,  1  Edw.  Ch.  (N.  Y.)  377  (sem- 
ble) ;  Eldred  v.  Eldred,  97  Va.  606. 

Different  or  additional  combinations  of  circumstances  constituting 
proof  of  marriage  will  be  found  in  the  following  cases: 


236  LAW   OF   EVIDENCE. 

stances  are  cohabitation  and  repute,  and,  to  establish  a  mar- 
riage, both  must  concur, — neither  is  sufficient  without  the 
other.508  Indeed,  in  many  jurisdictions,  proof  of  cohabitation 

ENGLAND:  Steadman  v.  Powell,  1  Addams  Ecc.  58  (2  Eng.  Ecc.  R. 
26);  Else  v.  Else,  Milw.  146. 

UNITED  STATES:     Arnold  v.  Chesebrough,  58  Fed.  833. 

ILLINOIS:     Lowry  v.  Coster,  91  111.  182;  Harman  v.  Harman,  16  111.  85. 

KENTUCKY:     Stover  v.  Boswell's  Heir,  3  Dana,  232. 

LOUISIANA:  Blasini  v.  Blasini's  Succession,  30  La.  Ann.  1388; 
Bothick  v.  Bothick,  45  La.  Ann.  1382;  Hobdy  v.  Jones,  2  La.  Ann.  944; 
Holmes  v.  Holmes,  6  La.  463,  26  A.  D.  482. 

MAINE:     Taylor  v.  Robinson,  29  Me.  323. 

MARYLAND:  Jackson  v.  Jackson,  80  Md.  176;  Redgrave  v.  Redgrave, 
38  Md.  93;  Sellman  v.  Bowen,  8  Gill  &  J.  50,  29  A.  D.  524;  Barnum  v. 
Barnum,  42  Md.  251,  296. 

MINNESOTA:     State  v.  Worthingham,  23  Minn.  528. 

MISSOURI:     Cargile  v.  Wood,  63  Mo.  501. 

MONTANA:     Soyer  v.  Great  Falls  Water  Co.,  15  Mont.  1. 

NEBRASKA:     Olson  v.  Peterson,  33  Neb.  358. 

NEW  HAMPSHIRE:     Stevens  v.  Reed,  37  N.  H.  49. 

NEW  JERSEY:     Wallace's  Case,  49  N.  J.  Eq.  530. 

NORTH  CAROLINA:  Jones  v.  Reddick,  79  N.  C.  290;  Doe  d.  Archer  v. 
Haithcock,  51  N.  C.  (6  Jones)  421. 

OREGON:     McBean  v.  McBean,  37  Or.  195. 

PENNSYLVANIA:     Durning  v.  Hastings,  183  Pa.  210. 

TENNESSEE:     Moore  v.  Moore,  102  Tenn.  148,  152. 

TEXAS  :     Wright  v.  Wright,  6  Tex.  3. 

VIRGINIA:     Purcell  v.  Purcell,  4  Hen.  &  M.  507. 

WEST  VIRGINIA:     Hitchcox  v.  Hitchcox,  2  W.  Va.  435. 

SOB  Arnold  v.  Chesebrough,  58  Fed.  833.  Contra,  Jenkins  v.  Bisbee, 
1  Edw.  Ch.  (N.  Y.)  377  (semble) ;  Fornshill  v.  Murray,  1  Bland  Ch. 
(Md.)  479,  18  A.  D.  344  (semble);  Pettingill  v.  McGregor,  12  N.  H. 
179,  184  (semble). 

Cohabitation  alone  is  not  sufficient.  Cargile  v.  Wood,  63  Mo.  501; 
Com.  v.  Stump,  53  Pa.  132,  91  A.  D.  198;  Williams  v.  Herrick,  21  R.  I. 
401,  79  A.  S.  R.  809;  Odd  Fellows'  Ben.  Ass'n  v.  Carpenter,  17  R.  I. 
720;  Eldred  v.  Eldred,  97  Va.  606.  See,  however,  State  v.  Schweitzer, 
57  Conn.  532,  6  L.  R.  A.  125;  Port  v.  Port,  70  111.  484;  Dannelli  v.  Dan- 
nelli's  Adm'r,  4  Bush  (Ky.)  51;  Copes  v.  Pearce,  7  Gill  (Md.)  247; 
Cheseldine's  Lessee  v.  Brewer,  1  Har.  &  McH.  (Md.)  152;  Henderson 
v.  Cargill,  31  Miss.  367,  419;  Allen  v.  Hall,  2  Nott  &  McC.  (S.  C.)  114, 


§  58b  LEGALITY.  237 

and  reputation  alone  justifies  a  finding  of  marriage,  so  that 
proof  of  other  circumstances  tending  to  establish  the  relation 
is  not  necessary.609 

-Nature  of  presumption — Rebuttal.  The  conclusion  of 
marriage  thus  based  on  circumstantial  evidence  is  commonly 
termed  a  presumption.510  In  some  cases  it  is  spoken  of  as 

10  A.  D.  578.  The  cohabitation  must  be  continuous.  McKenna  v.  Mc- 
Kenna, 180  111.  577;  Yardley's  Estate,  75  Pa.  207;  Senser  v.  Bower,  1 
Pen.  &  W.  (Pa.)  450;  Eldred  v.  Eldred,  97  Va.  606. 

Repute  alone  is  not  sufficient.  Greenawalt  v.  McEnelley,  85  Pa.  352, 
356.  See,  however,  Doe  d.  Fleming  v.  Fleming,  4  Bing.  266.  The  re- 
pute must  be  of  a  general  and  uniform  character.  Special  repute, 
based  on  divided  or  singular  opinion,  is  not  sufficient.  Cunningham 
v.  Cunningham,  2  Dow,  482;  Arnold  v.  Chesebrough,  58  Fed.  833;  White 
v.  White,  82  Cal.  427,  7  L.  R.  A.  799,  804;  McKenna  v.  McKenna,  180 
111.  577,  591;  Barnum  v.  Barnum,  42  Md.  251,  297;  Jackson  v.  Jackson, 
82  Md.  17,  33;  Wallace's  Case,  49  N.  J.  Eq.  530;  Greenawalt  v.  McEnel- 
ley, 85  Pa.  352;  Yardley's  Estate,  75  Pa.  207;  Williams  v.  Herrick,  21 
R.  I.  401,  79  A.  S.  R.  809;  Eldred  v.  Eldred,  97  Va.  606.  And  see  Jones 
v.  Hunter,  2  La.  Ann.  254.  See,  however,  Lyle  v.  Ellwood,  L.  R.  19  Eq. 
98;  Badger  v.  Badger,  88  N.  Y.  546,  42  A.  R.  263. 

509  De  Thoren  v.  Attorney  General,  1  App.  Cas.  686;  Campbell  v. 
Campbell,  L.  R.  1  H.  L.  Sc.  182;  George  v.  Thomas,  10  U.  C.  Q.  B.  604; 
Doe  d.  Breakey  v.  Breakey,  2  U.  C.  Q.  B.  349;  In  re  Ruffino's  Estate, 
116  Cal.  304;  Hammick  v.  Bronson,  5  Day  (Conn.)  290;  Trimble  v. 
Trimble,  2  Ind.  76;  Fleming  v.  Fleming,  8  Blackf.  (Ind.)  234;  Bowers 
v.  Van  Winkle,  41  Ind.  432;  Crozier  v.  Gano,  1  Bibb  (Ky.)  257;  Hoff- 
man v.  Simpson,  110  Mich.  133;  Boatman  v.  Curry,  25  Mo.  433;  Young 
v.  Foster,  14  N.  H.  114;  Jenkins  v.  Bisbee,  1  Edw.  Ch.  (N.  Y.)  377 
(semble);  Senser  v.  Bower,  1  Pen.  &  W.  (Pa.)  450;  Odd  Fellows'  Ben. 
Ass'n  v.  Carpenter,  17  R.  I.  720,  722;  Northfleld  v.  Vershire,  33  Vt. 
110.  And  see  Chiles  v.  Drake,  2  Mete.  (Ky.)  146,  74  A.  D.  406;  Long, 
Dom.  Rel.  101. 

sic  ENGLAND:  Campbell  v.  Campbell,  L.  R.  1  H.  L.  Sc.  182;  Cunning- 
ham v.  Cunningham,  2  Dow,  482. 

UNITED  STATES:     Arnold  v.  Chesebrough,  58  Fed.  833. 

CALIFORNIA:     In  re  Ruffino's  Estate,  116  Cal.  304. 

CONNECTICUT:     State  v.  Schweitzer,  57  Conn.  532,  6  L.  R.  A.  125. 

ILLINOIS:     Cartwright  v.  McGown,  121  111.  388,  2  A.  S.  R.  105. 

KENTUCKY:     Donnelly  v.  Donnelly's  Heirs,  8  B.  Mon.  113. 

LOUISIANA:     Holmes  v.  Holmes,  6  La.  463,  26  A.  D.  482. 


238  LAW   OF   EVIDENCE. 

a  presumption  of  fact;  that  is,  an  inference  which  the  jury 
may  draw  or  decline  to  draw,  as  to  them  seems  proper.  Its 
effect  is  merely  to  justify  a  finding  of  marriage,  not  to  compel 
such  a  finding.511  In  other  cases  the  presumption  is  regarded 
as  one  of  law;  that  is,  it  is  not  an  inference  at  all,  but  a  rule 
of  law  by  which  the  court  assumes  the  existence  of  the  mar- 
riage, without  regard  to  what  the  jury  may  think  about  it. 
Its  effect  in  this  view  is  to  make  a  prima  facie  case  of  marriage, 
and  thus  to  cast  on  the  party  disputing  the  fact  the  burden  of 
adducing  evidence  to  the  contrary.512  In  all  cases,  however, 
the  presumption  is  rebuttable.  Cohabitation  and  repute  do 
not  constitute  marriage;  they  are  merely  evidence  of  it;  and 
the  party  denying  the  union  may  accordingly  introduce  evi- 

MARYLAND:  Barnum  v.  Barnum,  42  Md.  251,  296;  Copes  v.  Pearce,  7 
Gill,  247. 

MINNESOTA:     State  v.  Worthingham,  23  Minn.  528. 

NEW  JERSEY:  Voorhees  v.  Voorhees,  46  N.  J.  Eq.  411,  19  A.  S.  R. 
404. 

NEW  YORK:  Gall  v.  Gall,  114  N.  Y.  109;  O'Gara  v.  Eisenlohr,  38  N. 
Y.  296;  Clayton  v.  Wardell,  4  N.  Y.  230;  Hynes  v.  McDermott,  91  N.  Y. 
451,  43  A.  R.  677;  Brinkley  v.  Brinkley,  50  N.  Y.  184,  10  A.  R.  460; 
Jenkins  v.  Bisbee,  1  Edw.  Ch.  377. 

OREGON:     McBean  v.  McBean,  37  Or.  195. 

PENNSYLVANIA:  Vincent's  Appeal,  60  Pa.  228;  Com.  v.  Stump,  53  Pa. 
132,  91  A.  D.  198;  Greenawalt  v.  McEnelley,  85  Pa.  352. 

RHODE  ISLAND:     Williams  v.  Herrick,  21  R.  I.  401,  79  A.  S.  R.  809. 

Presumption  of  regularity  of  ceremonial  marriage,  see  §  29,  supra. 

511  Doe  d.  Breakey  v.  Breakey,  2  U.  C.  Q.  B.  349;  Redgrave  v.  Red- 
grave, 38  Md.  93,  97;   Cargile  v.  Wood,  63  Mo.  501;  Fenton  v.  Reed,  4 
Johns.  (N.  Y.)  52,  4  A.  D.  244;  Eldred  v.  Eldred,  97  Va.  606. 

512  De    Thoren    v.    Attorney    General,    1    App.    Gas.    686;    George   v. 
Thomas,  10  U.  C.  Q.  B.  604;  Moore  v.  Heineke,  119  Ala.  627,  636;  Dan- 
nelli  v.  Dannelli's  Adm'r,  4  Bush  (Ky.)   51  (semble) ;  Hobdy  v.  Jones, 
2   La.  Ann.   944;    Blasini  v.   Blasini's   Succession,   30   La.   Ann.   1388; 
Bothick  v.  Bothick,  45  La.  Ann.  1382,  1384;  Hoffman  v.  Simpson,  110 
Mich.  133;  Henderson  v.  Cargill,  31  Miss.  367,  419;  Soyer  v.  Great  Falls 


§  58b  LEGALITY.  239 

dence  in  support  of  his  contention.513  To  dispel  the  presump- 
tion, the  evidence  adduced  in  rebuttal  must  be  cogent  and 
satisfactory,514  especially  after  the  lapse  of  a  long  time,  during 
which  the  cohabitation  and  repute  have  continued.515 

—  Matrimonial  intent.  To  justify  a  presumption  of  mar- 
riage, the  cohabitation  must,  in  its  origin,  have  been  consistent 
with  a  matrimonial  intent.516  Thus,  if  the  cohabitation  origi- 
nated in  fornication,  a  presumption  of  marriage  does  not  arise. 
On  the  contrary,  it  is  presumed  that  the  association  thus  begun 
in  violation  of  law  continued  so.51T  This  presumption  of  con- 
Water  Co.,  15  Mont.  1;  Young  v.  Foster,  14  N.  H.  114;  Wallace's  Case, 
49  N.  J.  Eq.  530,  535  (semble) ;  Costill  v.  Hill,  55  N.  J.  Eq.  479;  Allen 
v.  Hall,  2  Nott  &  McC.  (S.  C.)  114,  10  A.  D.  578. 

513  Laurence  v.  Laurence,  164  111.  367,  374;  Myatt  v.  Myatt,  44  111. 
473;  Sneed  v.  Ewing,  5  J.  J.  Marsh.  (Ky.)  460,  22  A.  D.  41;  Boone  v. 
Purnell,  28  Md.  607,  92  A.  D.  713;  Stevenson's  Heirs  v.  McReary,  12 
Smedes  &  M.  (Miss.)  9,  51  A.  D.  102;  Adair  v.  Mette,  156  Mo.  496; 
Olson  v.  Peterson,  33  Neb.  358,  363;  Emerson  v.  Shaw,  56  N.  H.  418; 
Costill  v.  Hill,  55  N.  J.  Eq.  479;  Wallace's  Case,  49  N.  J.  Eq.  530; 
Grimm's  Estate,  131  Pa.  199,  17  A.  S.  R.  796;  Reading  F.  I.  &  T.  Co.'s 
Appeal,  113  Pa.  204,  57  A.  R.  448;  Hunt's  Appeal,  86  Pa.  294;  Allen  v. 
Hall,  2  Nott  &  McC.  (S.  C.)  114,  10  A.  D.  578;  Eldred  v.  Eldred,  97 
Va.  606.  And  see  Collins  v.  Voorhees,  47  N.  J.  Eq.  555. 

6"Hynes  v.  McDermott,  91  N.  Y.  451,  43  A.  R.  677;  Eldred  v.  Eldred, 
97  Va.  606. 

"5  Doe  d.  Breakey  v.  Breakey,  2  U.  C.  Q.  B.  349,  354;  Hiler  v.  Peo- 
ple, 156  111.  511,  47  A.  S.  R.  221,  227. 

510  Williams  v.  Herrick,  21  R.  I.  401,  79  A.  S.  R.  809;  Stans  v.  Baitey, 
9  Wash.  115,  118;  Long,  Dom.  Rel.  103. 

BIT  ENGLAND:     Cunningham  v.  Cunningham,  2  Dow,  482. 

UNITED  STATES:     Arnold  v.  Chesebrough,  58  Fed.  833. 

CALIFORNIA:     White  v.  White,  82  Cal.  427,  7  L.  R.  A.  799. 

MARYLAND:  Jackson  v.  Jackson,  80  Md.  176,  1£2;  Jones  v.  Jones,  45 
Md.  144;  Barnum  v.  Barnum,  42  Md.  251,  297. 

MICHIGAN:     Van  Dusan  v.  Van  Dusan,  97  Mich.  70. 

MINNESOTA:     In  re  Terry's  Estate,  58  Minn.  268. 

MISSISSIPPI:     Floyd  v.  Calvert,  53  Miss.  37. 

MISSOURI:     Cargile  v.  Wood,  63  Mo.  501. 

NEW  YORK:  Clayton  v.  Wardell,  4  N.  Y.  230;  Badger  v.  Badger,  88 
N.  Y.  546,  42  A.  R.  263  (semble);  Brinkley  v.  Brinkley,  50  N.  Y.  184, 


240  LAW   OF   EVIDENCE. 

tinuity  is  rebuttable,  however;  and  evidence  of  a  subsequent 
intention  to  enter  into  the  marriage  relation  is  admissible, 
whether  it  be  direct  or  circumstantial.518 

So  if,  when  the  cohabitation  commenced,  either  of  the  par- 
ties was  already  married  to  a  third  person  still  living  and  un- 
divorced,  and  this  fact  was  known  to  either,  the  cohabitation 
cannot  give  rise  to  a  presumption  of  marriage.519  A  presump- 
tion of  marriage  may  arise  after  the  death  or  divorce  of  the 
other  party  to  the  prior  legal  marriage,  however.  Ordinarily, 
to  found  this  presumption,  there  must  be  evidence  that,  after 
the  removal  of  the  disability,  the  parties  to  the  cohabitation 
acted  on  an  intent  presently  to  enter  into  the  marriage  relation. 
Mere  cohabitation  and  repute  as  man  and  wife  subsequent  to  the 
death  or  divorce  of  the  previous  spouse  is  not  sufficient,  since 
the  meretricious  character  of  the  relation  is  presumed  to  con- 
tinue.520 This  presumption  of  continuity  also  is  rebuttable; 

10  A.  R.  460,  470  (semble) ;  Hynes  v.  McDermott,  91  N.  Y.  451,  43  A.  R. 
677;  Gall  v.  Gall,  114  N.  Y.  109. 

OREGON:     McBean  v.  McBean,  37  Or.  195. 

PENNSYLVANIA:  Reading  F.  I.  &  T.  Co.'s  Appeal,  113  Pa.  204,  57  A. 
R.  448;  Grimm's  Estate,  131  Pa.  199,  17  A.  S.  R.  796. 

VIRGINIA:     Eldred  v.  Eldred,  97  Va.  606. 

If  a  person  cohabits  with  two  persons  of  the  opposite  sex  during  the 
same  period  of  time,  a  presumption  of  marriage  cannot  arise  in  refer- 
ence to  either  person.  Cartwright  v.  McGown,  121  111.  388,  2  A.  S.  R. 
105,  116  (semble). 

sis  White  v.  White,  82  Gal.  427,  7  L.  R.  A.  799;  Jackson  v.  Jackson, 
80  Md.  176,  192;  Jones  v.  Jones,  45  Md.  144,  156;  In  re  Terry's  Estate, 
58  Minn.  268  (semble);  Gall  v.  Gall,  114  N.  Y.  109;  Badger  v.  Badger, 
88  N.  Y.  546,  42  A.  R.  263;  Hynes  v.  McDermott,  91  N.  Y.  451,  43  A.  R. 
677;  Long,  Dom.  Rel.  104. 

519  Wright  v.  Skinner,  17  U.  C.  C.  P.  317;  Gall  v.  Gall,  114  N.  Y.  109; 
Moore  v.  Moore,  102  Tenn.  148. 

A  marriage  being  shown,  the  presumption  is  ordinarily  that  no  Im- 
pediment to  the  union  existed,  and  that  the  parties  accordingly  had 
legal  capacity  to  marry.  Section  29,  supra. 

v.  Grierson,  1  H.  L.  Gas.  498;   Cartwright  v.  McGown,  121 


§  58b  LEGALITY.  241 

and  the  subsequent  intent  to  assume  the  marital  relation  may 
be  shown  by  circumstances  as  well  as  by  direct  evidence.521 
Nor  does  the  presumption  of  continuity  of  the  meretricious 
character  of  the  relation  apply  where  neither  party,  at  the 
time  they  assumed  the  marriage  relation,  knew  of  any  im- 
pediment to  the  union.  If  two  persons  enter  into  marriage, 
honestly  believing,  on  reasonable  though  mistaken  grounds, 
that  they  are  under  no  disability  to  do  so,  and  they  continue 
to  cohabit  as  man  and  wife  after  the  impediment  to  their 
marriage  is  removed,  and  are  reputed  as  such,  a  marriage  may 
be  presumed  from  such  cohabitation  and  reputation  alone. 
Further  evidence  of  a  renewed  intention  on  their  part  to  as- 
sume the  marriage  relation  is  not  required.522 

—  Subsequent  marriage  of  party  to  common-law  marriage. 

111.  388,  2  A.  S.  R.  105;  Randlett  v.  Rice,  141  Mass.  385:  Rose  v.  Rose, 
67  Mich.  619;  State  v.  Worthingham,  23  Minn.  528,  536;  Voorhees  v. 
Voorhees'  Ex'rs,  46  N.  J.  Eq.  411,  19  A.  S.  R.  404;  Collins  v.  Voorhees, 
47  N.  J.  Eq.  315,  555,  24  A.  S.  R.  412;  O'Gara  v.  Eisenlohr,  38  N.  Y. 
296;  Collins  v.  Collins,  80  N.  Y.  1;  Hunt's  Appeal,  86  Pa.  294;  Williams 
v.  Williams,  46  Wis.  464,  32  A.  R.  722;  Spencer  v.  Pollock,  83  Wis.  215. 
And  see  State  v.  Whaley,  10  Rich.  (S.  C.)  500. 

621  Campbell  v.  Campbell,  L.  R.  1  H.  L.  Sc.  182 ;  Blanchard  v.  Lam- 
bert, 43  Iowa,  228,  22  A.  R.  245;    Donnelly  v.  Donnelly's  Heirs,  8  B. 
Mon.    (Ky.)    113;   Taylor  v.  Swett,  3  La.  33,  22  A.  D.  156   (semble); 
Williams  v.  Kilburn,  88  Mich.  279;    State  v.  Worthingham,  23  Minn. 
528;  Fenton  v.  Reed,  4  Johns.  (N.  Y.)   52,  4  A.  D.  244;  Rose  v.  Clark, 
8  Paige  (N.  Y.)  574;  Yates  v.  Houston,  3  Tex.  433;  Williams  v.  Wil- 
liams, 46  Wis.  464,  32  A.  R.  722,  730  (semble).     And  see  Northfield  v. 
Plymouth,  20  Vt.  582.. 

It  is  relevant  to  this  question  of  intention  to  show  whether,  at  the 
time  of  commencing  their  illicit  relation,  the  parties  knew  of  the  im- 
pediment to  their  marriage,  and  whether,  after  the  impediment  was 
removed,  they  knew  of  that  fact.  Cartwright  v.  McGown,  121  111.  388, 
2  A.  S.  R.  105;  Randlett  v.  Rice,  141  Mass.  385;  O'Gara  v.  Eisenlohr, 
38  N.  Y.  296. 

622  De  Thoren  v.  Attorney  General,  1  App.  Cas.  686;  Poole  v.  People, 
24  Colo.  510,  65  A.  S.  R.  245;  Cartwright  v.  McGown,  121  111.  388,  2  A. 
S.  R.  105,  114  (semble) ;  Teter  v.  Teter,  101  Ind.  129,  51  A.  R.  742;  Long, 
Dom.  Rel.  104. 

Hammon,  Ev. — 16. 


242  LAW   OF  EVIDENCE.  §   5gb 

The  presumption  of  marriage  arising  from  cohabitation  and 
repute  is  dispelled  by  the  fact  that  one  of  the  parties  subse- 
quently entered  into  a  formal  marriage  with  a  third  person  in 
the  lifetime  of  the  other.528  When  this  additional  fact  of  sub- 
sequent marriage  is  shown,  the  question  of  the  earlier  marriage 
by  cohabitation  becomes  one  for  the  jury  upon  all  the  evidence, 
regardless  of  any  presumption."24 

—  Legitimacy — Succession — Divorce — Criminal  cases.  Im- 
portant applications  of  the  presumption  of  marriage  occur  in 
cases  where  the  legitimacy  of  the  offspring  of  the  cohabitation 
or  of  a  subsequent  marriage  is  in  issue;525  in  cases  where  one 

523  Moore  v.  Heineke,  119  Ala.  627;  Case  v.  Case,  17  Cal.  598;  Jenkins 
v.  Jenkins,  83  Ga.  283,  20  A.  S.  R.  316;  Jones  v.  Jones,  48  Md.  391,  30 
A.  R.  466;  Clayton  v.  "Warden,  4  N.  Y.  230.     And  see  Taylor  v.  Taylor, 
1  Lee  Ecc.  571;  Myatt  v.  Myatt,  44  111.  473. 

The  subsequent  ceremonial  marriage  is  a  circumstance  of  little 
weight,  however,  if  the  party  entering  into  it  supposed  that  her  for- 
mer husband  by  cohabitation  was  dead.  Thompson  v.  Nims,  83  Wis. 
261. 

The  prior  marriage  may  be  established  by  circumstantial  evidence, 
however.  Moore  v.  Heineke,  119  Ala.  627;  Jenkins  v.  Jenkins,  83  Ga. 
283,  20  A.  S.  R.  316;  Donnelly  v.  Donnelly's  Heirs,  8  B.  Mon.  (Ky.) 
113;  Sneed  v.  Ewing,  5  J.  J.  Marsh.  (Ky.)  460,  22  A.  D.  41;  Camden  v. 
Belgrade,  75  Me.  126,  46  A.  R.  364;  O'Gara  v.  Eisenlohr,  38  N.  Y.  296; 
Doe  d.  Archer  v.  Haithcock,  51  N.  C.  (6  Jones)  421;  Poultney  v.  Fair- 
haven,  Brayt.  (Vt.)  185.  And  see  Applegate  v.  Applegate,  45  N.  J.  Eq. 
116;  Northfleld  v.  Plymouth,  20  Vt.  582.  Contra,  Jones  v.  Jones,  48 
Md.  391,  30  A.  R.  466;  Case  v.  Case,  17  Cal.  598. 

524  Moore  v.  Heineke,  119  Ala.  627;   Jenkins  v.  Jenkins,  83  Ga.  283, 
20  A.  S.  R.  316;  Camden  v.  Belgrade,  75  Me.  126,  46  A.  R.  364  (semble); 
Senser  v.  Bower,  1  Pen.  &  W.  (Pa.)  450;  Long,  Dom.  Rel.  104. 

525  Campbell  v.  Campbell,  L.  R.  1  H.  L.  Sc.  182;   Doe  d.  Breakey  v. 
Breakey,  2  U.  C.  Q.  B.  349;  In  re  Ruffino's  Estate,  116  Cal.  304;  Sneed 
v.  Ewing,  5  J.  J.  Marsh.  (Ky.)  460,  22  A.  D.  41;  Donnelly  v.  Donnelly's 
Heirs,  8  B.  Mon.    (Ky.)    113;   Bothick  v.  Bothick,  45  La.  Ann.  1382; 
Barnum  v.  Barnum,  42  Md.  251,  296;   Hoffman  v.  Simpson,  110  Mich. 
133;    State  v.  Worthingham,  23  Minn.  528;   Henderson  v.  Cargill,  31 
Miss.  367;  Hynes  v.  McDermott,  91  N.  Y.  451,  43  A.  R.  677;   Senser  v. 
Bower,  1  Pen.  &  W.  (Pa.)  450. 


§  58b  LEGALITY.  243 

of  the  parties  to  the  cohabitation  has  died,  and  the  other  as- 
serts marital  rights  in  the  decedents  property;526  and  in  ac- 
tions for  divorce  between  the  parties.527  The  application  of 
the  presumption  of  marriage  arising  from  cohabitation  and  re- 
pute presents  a  conflict  of  opinion  in  criminal  cases.  In  some, 
the  presumption  is  applied  here  as  well  as  in  civil  trials.528  In 

B2e  Blanchard  v.  Lambert,  43  Iowa,  228,  22  A.  R.  245;  Fleming  v. 
Fleming,  8  Blackf.  (Ind.)  234;  Donnelly  v.  Donnelly's  Heirs,  8  B.  Mon. 
(Ky.)  113;  Redgrave  v.  Redgrave,  38  Md.  93;  Young  v.  Foster,  14  N. 
.H.  114;  Costill  v.  Hill,  55  N.  J.  Eq.  479;  Betsinger  v.  Chapman,  88  N. 
Y.  487;  Gall  v.  Gall,  114  N.  Y.  109;  Rose  v.  Clark,  8  Paige  (N.  Y.)  574; 
Fenton  v.  Reed,  4  Johns.  (N.  Y.)  52,  4  A.  D.  244;  Badger  v.  Badger,  88 
N.  Y.  546,  42  A.  R.  263;  Richard  v.  Brehm,  73  Pa.  140,  13  A.  R.  733. 

627  Abandonment.     Brinkley  v.  Brinkley,  50  N.  Y.  184,  10  A.  R.  460, 
470   (semble). 

Adultery.  Morris  v.  Morris,  20  Ala.  168;  White  v.  White,  82  Cal.  427, 
7  L.  R.  A.  799.  See,  however,  Case  v.  Case,  17  Cal.  598;  Trimble  v. 
Trimble,  2  Ind.  76,  78.  Presumption  of  marriage  in  prosecution  for 
adultery,  see  note  529,  infra. 

Cruelty.  Burns  v.  Burns,  13  Fla.  369;  Harman  v.  Harman,  16  111. 
85;  Wright  v.  Wright,  6  Tex.  3.  And  see  Hitchcox  v.  Hitchcox,  2  W. 
Va.  435. 

Desertion.     Purcell  v.  Purcell,  4  Hen.  &  M.  (Va.)  507  (semble). 

In  Ohio,  the  prior  marriage  of  one  of  the  spouses  cannot,  it  seems, 
be  shown  by  cohabitation  and  reputation,  in  an  action  against  him  by 
the  subsequent  wife  for  divorce  on  that  ground.  Houpt  v.  Houpt,  5 
Ohio,  539. 

628  Bastardy.     State  v.  Worthingham,  23  Minn.  528;   Olson  v.  Peter- 
son, 33  Neb.  358,  363  (semble). 

Nonsupport.  Poole  v.  People,  24  Colo.  510,  65  A.  S.  R.  245;  State  v. 
Schweitzer,  57  Conn.  532,  6  L.  R.  A.  125. 

Wife  beating.     Hanon  v.  State,  63  Md.  123. 

Admissions,  declarations,  and  confessions  of  marriage  are  admissible 
in  criminal  cases  of  this  sort.  Reg.  v.  Simmonsto,  1  Car.  &  K.  164; 
Miles  v.  U.  S.,  103  U.  S.  304;  Cameron  v.  State,  14  Ala.  546,  48  A.  D. 
Ill;  Buchanan  v.  State,  55  Ala.  154;  Williams  v.  State,  54  Ala.  131,  25 
A.  R.  665;  Parker  v.  State,  77  Ala.  47,  54  A.  R.  43;  State  v.  Schweitzer, 
57  Conn.  532,  6  L.  R.  A.  125;  Cook  v.  State,  11  Ga.  53,  56  A.  D.  410; 
Squire  v.  State,  46  Ind.  459;  Ham's  Case,  11  Me.  391;  State  v.  Hodgs- 
kins,  19  Me.  155,  36  A.  D.  742  (semble) ;  Com.  v.  Holt,  121  Mass.  61 


244  LAW   OF   EVIDENCE.  §   58b 

others  a  contrary  view  is  taken,  and  a  ceremonial  marriage 
must  be  proved.529 

(statute);  Clayton  v.  Wardell,  4  N.  Y.  230,  234  (semble);  Wolverton 
v.  State,  16  Ohio,  173,  47  A.  D.  373;  Finney  v.  State,  3  Head  (Tenn.) 
544  (statute).  And  see  Forney  v.  Hallacher,  8  Serg.  &  R.  (Pa.)  159, 

11  A.  D.  590.     Contra,  State  v.  Roswell,  6  Conn.  446;  State  v.  Johnson, 

12  Minn.  476,  93  A.  D.  241;  People  v.  Humphrey,  7  Johns.  (N.  Y.)   314. 
529  Adultery.    Burns  v.  Burns,  13  Fla.  369  (semble);  State  v.  Hodgs- 

kins,  19  Me.  155,  36  A.  D.  742. 

Bigamy.  Doe  d.  Breakey  v.  Breakey,  2  U.  C.  Q.  B.  349,  353  (semble) ; 
Brown  v.  State,  52  Ala.  338;  People  v.  Beevers,  99  Cal.  286,  289  (sem- 
ble); Hammick  v.  Bronson,  5  Day  (Conn.)  290,  293  (semble);  Green 
v.  State,  21  Fla.  403,  58  A.  R.  670;  Hiler  v.  People,  156  111.  511,  47  A. 
S.  R.  221;  Stover  v.  Boswell's  Heir,  3  Dana  (Ky.)  232,  233  (semble); 
Sneed  v.  Ewing,  5  J.  J.  Marsh.  (Ky.)  460,  22  A.  D.  41,  69  (semble); 
Redgrave  v.  Redgrave,  38  Md.  93,  97  (semble) ;  Jackson  v.  Jackson, 
80  Md.  176,  187  (semble) ;  State  v.  Johnson,  12  Minn.  476,  93  A.  D.  241; 
Applegate  v.  Applegate,  45  N.  J.  Eq.  116,  119  (semble);  Fenton  v.  Reed, 
4  Johns.  (N.  Y.)  52,  4  A.  D.  244  (semble);  Clayton  v.  Wardell,  4  N.  Y. 
230,  234  (dubitante);  Hayes  v.  People,  25  N.  Y.  390,  82  A.  D.  364.  And 
see  Case  v.  Case,  17  Cal.  598. 

However,  in  a  prosecution  for  bigamy,  the  prior  marriage  of  the 
accused  may  be  proved  by  cohabitation  and  repute,  coupled  with  his 
declarations  or  admissions  of  marriage.  Moore  v.  Heineke,  119  Ala. 
627,  637  (semble);  Langtry  v.  State,  30  Ala.  536;  Halbrook  v.  State,  34 
Ark.  511,  36  A.  R.  17;  People  v.  Beevers,  99  Cal.  286,  289  (semble); 
State  v.  Hughes,  35  Kan.  626,  57  A.  R.  195;  Com.  v.  Jackson,  11  Bush 
(Ky.)  679,  21  A.  R.  225;  State  v.  Britton,  4  McCord  (S.  C.)  256;  State 
v.  Hilton,  3  Rich.  Law  (S.  C.)  434,  45  A.  D.  783;  Dumas  v.  State,  14 
Tex.  App.  464,  46  A.  R.  241;  Oneale  v.  Com.,  17  Grat.  (Va.)  582.  Con- 
tra, Sellman  v.  Bowen,  8  Gill  &  J.  (Md.)  50,  29  A.  D.  524  (semble); 
Fornshill  v.  Murray,  1  Bland  Ch.  (Md.)  479,  18  A.  D.  344  (semble); 
People  v.  Lambert,  5  Mich.  349,  72  A.  D.  49. 

Incest.     State  v.  Roswell,  6  Conn.  446. 

Lascivious  cohabitation.     Com.  v.  Littlejohn,  15  Mass.  163   (semble). 

Seduction.    West  v.  State,  1  Wis.  209. 

The  same  rule  is  applied  in  actions  for  criminal  conversation.  Mor- 
ris v.  Miller,  4  Burrow,  2057,  1  W.  Bl.  632;  Catherwood  v.  Caslon,  13 
Mees.  &  W.  261,  265;  Hammick  v.  Bronson,  5  Day  (Conn.)  290,  293 
(semble);  Burns  v.  Burns,  13  Fla.  369  (semble);  Bowers  v.  Van  Win- 
kle, 41  Ind.  432  (semble);  Fleming  v.  Fleming,  8  Blackf.  (Ind.)  234, 


§  59  LEGITIMACY.  245 

N.  LEGITIMACY. 

§  59.    General  rules. 

The  present  discussion  concerns  the  legitimacy  of  children 
born  in  wedlock,  fatherhood  being  in  question.  Legitimacy 
depending  on  the  fact  and  validity  of  marriage,  fatherhood 
being  certain,  is  considered  in  other  connections.530 

In  the  absence. of  evidence  of  impotency  or  lack  of  oppor- 
tunity, sexual  intercourse  between  husband  and  wife  is  pre- 
sumed.531 If,  therefore,  a  child  is  born  in  wedlock,  the  pre- 
sumption is  that  it  is  legitimate,  and  the  burden  of  adducing 
evidence  to  the  contrary  is  on  the  party  who  denies  legiti- 
macy ;532  and  this  is  true  where  the  child  is  born  so  soon  after 

235  (semble);  Stover  v.  Boswell's  Heir,  3  Dana  (Ky.)  232,  233  (sem- 
ble) ;  Sneed  v.  Ewing,  5  J.  J.  Marsh.  (Ky.)  460,  22  A.  D.  41,  69  (sem- 
ble); Sellman  v.  Bowen,  8  Gill  &  J.  (Md.)  50,  29  A.  D.  524  (semble); 
Redgrave  v.  Redgrave,  38  Md.  93,  97  (.semble) ;  Jackson  v.  Jackson,  80 
Md.  176,  187  (semble);  Fornshill  v.  Murray,  1  Bland  Ch.  (Md.)  479, 
18  A.  D.  344  (semble);  Hutchins  v.  Kimmell,  31  Mich.  126,  18  A.  R. 
164  (semble);  Pettingill  v.  McGregor,  12  N.  H.  179,  184  (semble); 
Applegate  v.  Applegate,  45  N.  J.  Eq.  116,  119  (semble) ;  Fenton  v. 
Reed,  4  Johns.  (N.  Y.)  52,  4  A.  D.  244  (semble) ;  Jones  v.  Reddick,  79 
N.  C.  290,  292  (semble);  Doe  d.  Archer  v.  Haithcock,  51  N.  C.  (6 
Jones)  421  (semble).  See,  however,  Forney  v.  Hallacher,  8  Serg.  & 
R.  (Pa.)  159,  11  A.  D.  590. 

It  is  otherwise  in  an  action  for  alienation  of  a  wife's  affections,  how- 
ever. Durning  v.  Hastings,  183  Pa.  210. 

630  Presumption  of  the  fact  of  marriage  from  cohabitation  and  re- 
pute, see   §   58,   supra.     See,  also,   note   535,   infra.     Presumption   of 
regularity  of  marriage  in  fact,  see  §  29,  supra. 

631  Morris  v.  Davis,  5  Clark  &  F.  163,  243;   Egbert  v.  Greenwalt,  44 
Mich.  245,  38  A.  R.  260;   Cross  v.  Cross,  3  Paige,  139,  23  A.  D.  778; 
•State  v.  Herman,  35  N.  C.  (13  Ired.)  502  (semble). 

eszBanbury  Peerage  Case,  1  Sim.  &  S.  153,  Thayer,  Gas.  Ev.  45; 
Plowes  v.  Bossey,  31  Law  J.  Ch.  681;  Patterson  v.  Gaines,  6  How.  (U. 
S.)  550;  Eloi  v.  Mader,  1  Rob.  (La.)  581,  38  A.  D.  192;  Phillips  v. 
Allen,  2  Allen  (Mass.)  453;  Herring  v.  Goodson,  43  Miss.  392;  Gurvin 
v.  Cromartie,  33  N.  C.  (11  Ired.)  174,  53  A.  D.  406;  Scott  v.  Hillenberg, 
85  Va.  245;  Long,  Dom.  Rel.  305. 


246  LAW   OF   EVIDENCE.  55  59 

divorce  or  the  husband's  death  that  it  may  have  been  begot- 
ten during  wedlock  ;533  and  even  where  it  is  born  so  soon  after 
marriage  that  it  must  have  been  begotten  before  that  event.534 
Since  the  presumption  under  discussion  concerns  only  chil- 
dren born  in  wedlock,  it  follows  that  it  can  arise  only  where 
there  has  been  a  lawful  marriage,535  and,  moreover,  only  where 

533  Alsop  v.  Bowtrell,  Cro.  Jac.  541;   Legge  v.  Edmonds,  25  Law  J. 
Ch.  125;  Drenna.n  v.  Douglas,  102  111.  341,  40  A.  R.  595. 

If  a  child  is  begotten  in  wedlock,  and  before  it  is  born  the  husband 
secures  a  divorce,  and  the  wife  marries  again,  the  presumption  is  that 
the  first  husband  is  the  father.  Shuman  v.  Shuman,  83  Wis.  250.  See, 
however,  Zachmann  v.  Zachmann,  201  111.  380,  94  A.  S.  R.  180. 

534  Gardner  v.  Gardner,   2  App.   Gas.  723 ;    Zachmann  v.  Zachmann 
201  111.  380,  94  A.  S.  R.  180;  Tioga  County  v.  South  Creek  Tp.,  75  Pa. 
433;   McCulloch  v.  McCulloch,  69  Tex.  682,  5  A.  S.  R.  96.     See,  how- 
ever, Shuman  v.  Shuman,  83  Wis.  250. 

The  presumption  applies  under  these  circumstances  where  heirship 
is  in  question.  Stegall  v.  Stegall's  Adm'r,  2  Brock.  256,  Fed.  Cas.  No. 
13,351;  Wright  v.  Hicks,  12  Ga.  155,  56  A.  D.  451,  15  Ga.  160,  60  A.  D. 
687;  Dennison  v.  Page,  29  Pa.  420,  72  A.  D.  644;  Kleinert  v.  Ehlers,  38 
Pa.  439;  Wilson  v.  Babb,  18  S.  C.  59.  It  applies  also  in  cases  of  adul- 
terine bastardy.  State  v.  Romaine,  58  Iowa,  46;  State  v.  Herman,  35 
N.  C.  (13  Ired.)  502.  But  it  will  not  be  indulged  against  the  husband, 
so  as  to  defeat  his  right  to  annul  the  marriage  for  fraud,  or  so  as  to 
relieve  the  putative  father  in  bastardy  proceedings,  unless  the  woman 
was  visibly  pregnant  at  the  time  of  her  marriage.  Baker  v.  Baker,  13 
Cal.  88;  Roth  v.  Jacobs,  21  Ohio  St.  646.  It  is  otherwise,  however,  at 
least  in  bastardy  cases,  if  she  was  visibly  pregnant  at  that  time.  State 
v.  Shoemaker,  62  Iowa,  343,  49  A.  R.  146;  State  v.  Herman,  35  N.  C. 
(16  Ired.)  502;  Miller  v.  Anderson,  43  Ohio  St.  473,  54  A.  R.  823. 

The  presumption  of  legitimacy  does  not  apply  in  favor  of  an  ante- 
nuptial child.  Janes'  Estate,  147  Pa.  527. 

sss  However,  every  child  is  presumed  to  have  been  born  in  lawful 
wedlock,  in  the  absence  of  clear  and  convincing  evidence  to  the  con- 
trary. To  establish  his  legitimacy,  therefore,  neither  he  nor  those 
claiming  under  him  need  show  in  the  first  instance  that,  his  parents 
were  married.  Weatherford  v.  Weatherford,  20  Ala.  548,  56  A.  D.  206 
(semble);  Orthwein  v.  Thomas,  127  111.  554,  11  A.  S.  R.  159;  Strode 
v.  Magowan's  Heirs,  2  Bush  (Ky.)  621;  In  re  Matthews'  Estate,  153 
N.  Y.  443;  Obenstein's  Appeal,  163  Pa.  14,  25  L.  R.  A.  477;  Dinkins  v. 


§  60  LEGITIMACY.  247 

that  marriage  continues  in  full  force  and  effect.  It  does  not 
arise,  therefore,  where  the  child  in  question  was  begotten  after 
the  rendition  of  a  decree  of  divorce  from  bed  and  board;588 
much  less  after  a  decree  a  vinculo  matrimonii.  The  fact  that 
there  has  been  a  voluntary  separation  of  the  parties  does  not 
bring  the  case  within  this  rule,  however,  and,  accordingly,  the 
presumption  prevails  in  such  cases  unless  nonaccess  or  im- 
potency  on  the  part  of  the  husband  is  shown.537 

§  60.    Rebuttal  of  presumption. 

The  presumption  of  legitimacy  is  rebuttable.538  If  it  is  shown 
that  the  husband  was  impotent,  the  presumption  is  dispelled, 
and  illegitimacy  is  conclusively  established;  and  this  was  the 
early  rule,  as  well  as  the  modern  opinion.539  Save  in  the  re- 
Samuel,  10  Rich.  Law  (S.  C.)  66;  Ex  parte  Eason,  37  S.  C.  19.  And 
see  111.  L.  &  L.  Co.  v.  Bonner,  75  111.  315;  Vaughan  v.  Rhodes,  2  Mc- 
Cord  (S.  C.)  227,  13  A.  D.  713. 

036  inter  the  Parishes  of  St.  George  &  St.  Margaret,  1  Salk.  123. 
Contra,  McNeely  v.  McNeely,  47  La.  Ann.  1321. 

Nonaccess  is  not  presumed  from  the  mere  pendency  of  an  action  for 
divorce,  however.  Drennan  v.  Douglas,  102  111.  341,  40  A.  R.  595. 

oar  inter  the  Parishes  of  St.  George  &  St.  Margaret,  1  Salk.  123;  Tate 
v.  Penne,  7  Mart.  (N.  S.;  La.)  548;  Hemmenway  v.  Towner,  1  Allen 
(Mass.)  209  (semble).  See,  also,  page  250,  infra. 

638  The  presumption  is  a  conclusive  one,  so  called,  in  certain  cases 
of  adulterine  bastardy.     State  v.  Shoemaker,  62  Iowa,   343,   49  A.  R. 
146;  State  v.  Herman,  35  N.  C.   (13  Ired.)  502;  Miller  v.  Anderson,  43 
Ohio  St.  473,  54  A.  R.  823;  Ha  worth  v.  Gill,  30  Ohio  St.  627;  Long,  Dom. 
Rel.  304. 

In  Louisiana,  no  one  but  the  husband  or  his  heirs  may  disprove  the 
presumption.  Neither  the  wife  nor  her  heirs  nor  the  child  may  deny 
legitimacy.  Eloi  v.  Mader,  1  Rob.  (La.)  581,  38  A.  D.  192. 

In  California  it  is  provided  by  statute  that  the  issue  of  a  wife  co- 
habiting with  her  husband,  who  is  not  impotent,  is  indisputably  pre- 
sumed to  be  legitimate.  Mills'  Estate,  137  Cal.  298,  92  A.  S.  R.  175. 

639  Rex  v.  Luffe,  8  East,  193,  205;  Hargrave  v.  Hargrave,  9  Beav.  552; 
Legge  v.  Edmonds,  25  Law  J.  Ch.  125;  Goss  v.  Froman,  89  Ky.  318,  8 
L.  R.  A.  102;  State  v.  McDowell,  101  N.  C.  734,  736. 

Potency  of  a  mature  male  is  presumed.  Gardner  v.  State,  81  Ga. 
144. 


248  LAW   OF  EVIDENCE.  §  60 

spect  of  impotency,  the  presumption  was  conclusive  at  common 
law,  unless  the  husband  was  beyond  the  four  seas  when  the 
child  was  begotten,  and  during  the  entire  period  of  gestation, 
and  evidence  to  the  contrary  would  not  be  received,  even 
though  its  import  was  to  show  beyond  a  doubt  that  the  child 
was  not  the  husband's.640  This  is  no  longer  the  law,  however, 
and,  accordingly,  any  evidence  which  fairly  tends  to  show 
illegitimacy  is  admissible  to  rebut  the  presumption. 

This  evidence  in  rebuttal  usually  takes  the  form  of  proof  of 
nonaccess  of  the  husband  to  the  wife  at  the  time  when  the  child 
was  begotten,  meaning,  by  access,  actual  sexual  intercourse;541 
and  nonaccess  in  fact  may  be  inferred,  even  though  there  was 

BIO  Co.  Litt.  244a;  Rex  v.  Alberton,  1  Ld.  Raym.  395,  2  Salk.  483; 
Reg.  v.  Murrey,  1  Salk.  122.  See  Wartone  v.  Simon,  Y.  B.  32  &  33 
Edw.  I.  (60),  Thayer,  Gas.  Ev.  45;  Wright  v.  Hicks,  12  Ga.  155,  56  A. 
D.  451;  Van  Aernam  v.  Van  Aernam,  1  Barb.  Ch.  (N.  Y.)  375;  Wood- 
ward v.  Blue,  107  N.  C.  407,  22  A.  S.  R.  897. 

5*1  ENGLAND:  Rex  v.  Luffe,  8  East,  193;  Hargrave  v.  Hargrave,  9 
Beav.  552;  Gurney  v.  Gurney,  32  Law  J.  Ch.  456;  Rex  v.  Maidstone,  12 
East,  550;  Barony  of  Saye  &  Sele,  1  H.  L.  Gas.  507;  Pendrell  v.  Pendrell, 
2  Strange,  925;  Hawes  v.  Draeger,  23  Ch.  Div.  173. 

UNITED  STATES:  Stegall  v.  Stegall's  Adm'r,  2  Brock.  256,  Fed.  Cas. 
No.  13,351. 

INDIANA:     Dean  v.  State,  29  Irid.  483. 

IOWA:     Bruce  v.  Patterson,  102  Iowa,  184. 

LOUISIANA:     Tate  v.  Penne,  7  Mart.  (N.  S.)  548,  554. 

MASSACHUSETTS:     Randolph  v.  Easton,  23  Pick.  242,  243. 

MISSISSIPPI:     Herring  v.  Goodson,  43  Miss.  392. 

NEW  YORK:  Cross  v.  Cross,  3  Paige,  139,  23  A.  D.  778;  Van  Aernam 
v.  Van  Aernam,  1  Barb.  Ch.  375. 

NOETH  CAROLINA:  State  v.  Pettaway,  10  N.  C.  (3  Hawks)  623;  State 
v.  McDowell,  101  N.  C.  734. 

PENNSYLVANIA:  Com.  v.  Shepherd,  6  Bin.  283,  6  A.  D.  449;  Dennison 
v.  Page,  29  Pa.  420,  72  A.  D.  644. 

SOUTH  CAROLINA:     State  v.  Shumpert,  1  Rich.  85. 

VERMONT:     Pittsford  v.  Chittenden,  58  Vt.  49. 

WISCONSIN:     Shuman  v.  Hurd,  79  Wis.  654,  657   (semble). 


§  60  LEGITIMACY.  249 

opportunity  for  access.542     The  presumption  may  also  be  dis- 
pelled by  other  evidence  than  that  of  impotency  or  nonaccess, 
however.548     This  is  well  illustrated  by  cases  wherein  a  mulatto 
is  born  of  a  white  woman,  the  husband  also  being  white.644 
The  fact  that  the  wife  committed  adultery  at  or  about  the 

642  Reg.  v.  Mansfield,  1  Q.  B.  444,  1  Gale  &  D.  7;  Cope  v.  Cope,  5  Car. 
A  P.  604,  1  Moody  &  R.  269;  Banbury  Peerage  Case,  1  Sim.  &  S.  153, 
Thayer,  Cas.  Ev.  45;  Morris  v.  Davis,  5  Clark  &  F.  163,  256;  Atchley  v. 
Sprigg,  33  Law  J.  Ch.  345;  Woodward  v.  Blue,  107  N.  C.  407,  22  A.  S. 
R.  897;  Cannon  v.  Cannon,  7  Humph.  (Tenn.)  410.  See,  however, 
Hargrave  v.  Hargrave,  9  Beav.  552,  555;  Bury  v.  Phillpot,  2  Mylne  & 
K.  349;  Wright  v.  Hicks,  12  Ga.  155,  56  A.  D.  451,  454,  15  Ga.  160,  60 
A.  D.  687;  Tate  v.  Penne,  7  Mart.  N.  S.  (La.)  548,  554;  Shuman  v. 
Shuman,  83  Wis.  250,  255. 

6«Hawes  v.  Draeger,  23  Ch.  Div.  173;  Goodnight  v.  Saul,  4  Term  R. 
356;  Wright  v.  Hicks,  15  Ga.  160,  60  A.  D.  687;  Sullivan  v.  Hugly.  32 
Ga.  316,  322;  Wilson  v.  Babb,  18  S.  C.  59.  Contra,  Com.  v.  Shepherd, 
€  Bin.  (Pa.)  283,  6  A.  D.  449  (semble). 

In  the  absence  of  evidence  of  nonaccess  or  impotency,  the  declara- 
tions and  acts  of  the  husband  and  wife  at  the  birth  of  the  child  or 
subsequently  are  not  admissible  to  prove  it  illegitimate.  Dennison  v. 
Page,  29  Pa.  420,  72  A.  D.  644.  See,  however,  Morris  v.  Davis,  5  Clark 
A  F.  163,  242;  Stegall  v.  Stegall's  Adm'r,  2  Brock.  256,  Fed.  Cas.  No. 
13,351;  Wright  v.  Hicks,  15  Ga.  160,  60  A.  D.  687. 

Conduct  of  the  putative  father  is  admissible  in  connection  with  evi- 
dence of  nonaccess  of  the  husband.  Woodward  v.  Blue,  107  N.  C.  407, 
22  A.  S.  R.  897. 

General  reputation  in  the  vicinage  as  to  legitimacy  is  not  admis- 
sible. Wright  v.  Hicks,  15  Ga.  160,  60  A.  D.  687;  Strode  v.  Magowan's 
Heirs,  2  Bush  (Ky.)  621.  See,  however,  Stegall  v.  Stegall's  Adm'r,  2 
Brock.  256,  Fed.  Cas.  No.  13,351.  Family  reputation  is  admissible. 
Hawes  v.  Draeger,  23  Ch.  Div.  173,  180  (semble);  Wright  v.  Hicks,  15 
Ga.  160,  60  A.  D.  687;  Strode  v.  Magowan's  Heirs,  2  Bush  (Ky.)  621. 

c**  Thayer,  Prel.  Treat.  Ev.  346;  Bullock  v.  Knox,  96  Ala.  195;  Wright 
v.  Hicks,  12  Ga.  155,  56  A.  D.  451,  455  (semble);  Warlick  v.  White,  76 
N.  C.  175.  See  Sullivan  v.  Hugly,  32  Ga.  316,  322. 

The  presumption  is  also  rebutted  where  the  husband  is  black,  the 
wife  a  mulatto,  and  the  child  white.  Cross  v.  Cross,  3  Paige  (N.  Y.) 
139,  23  A.  D.  778,  780  (semble).  And  see  Woodward  v.  Blue,  107  N.  C. 
407,  22  A.  S.  R.  897. 


250  LAW   OF   EVIDENCE.  §  60 

time  when  the  child  was  conceived  does  not  dispel  the  presump- 
tion of  legitimacy,  if  she  was  then  living  with  her  husband,545^ 
or  even  where  she  was  living  apart  from  him,  if  there  is  no 
evidence  of  nonaccess  on  his  part,546  or,  at  least,  if  the  circum- 
stances are  such  that  he  might  have  had  access  to  her.547  In 
connection  with  circumstances  tending  to  show  nonaccess  or 
impotency,  however,  misconduct  on  the  part  of  the  wife  is  a 
material  circumstance  in  determining  whether  the  presump- 
tion is  rebutted.548 

To  rebut  the  presumption  of  legitimacy,  the  evidence  of  im- 
potency or  nonaccess  on  the  husband's  part  must  be  clear  and 
convincing.549  If  actual  sexual  intercourse  between  the  spouses 

545  Stegall   v.   Stegall's   Adm'r,   2   Brock.   256,   Fed.   Gas.   No.   13,351 
(semble) ;  Hemmenway  v.  Towner,  1  Allen  (Mass.)  209, 

The  fact  that  a  third  person  ravished  the  wife  at  or  about  the  time 
when  the  child  was  conceived  does  not  disprove  legitimacy,  in  the 
absence  of  evidence  of  nonaccess  or  impotency  on  the  part  of  the  hus- 
band. Egbert  v.  Greenwalt.  44  Mich.  245,  38  A.  R.  260. 

546  Reg.  v.  Mansfield,    1  Q.  B.  444,  1  Gale  &  D.  7;  Van  Aernam  v.  Van 
Aernam,  1  Barb.  Ch.  (N.  Y.)  375. 

547  Wright  v.  Holdgate,  3  Car.  &  K.  158;   Hargrave  v.  Hargrave,  9 
Beav.  552;  Cope  v.  Cope,  1  Moody  &  R.  269,  5  Car.  &  P.  604;  Plowes  v. 
Bossey,  31  Law  J.  Ch.  681,  683  (semble) ;  Bury  v.  Phillpot,  2  Mylne  & 
K.  349. 

548  Morris  v.  Davis,  5  Clark  &  F.  163,  256;   Sibbet  v.  Ainsley,  3  Law 
T.    (N.  S.)    583;    Legge  v.  Edmonds,   25  Law  J.  Ch.   125;    Atchley  v. 
Sprigg,  33  Law  J.  Ch.  345;  Cope  v.  Cope,  1  Moody  &  R.  269,  5  Car.  & 
P.  604;  Bruce  v.  Patterson,  102  Iowa,  184;  Goss  v.  Froman,  89  Ky.  318, 
8  L.  R.  A.  102;    Cross  v.  Cross,  3  Paige    (N.  Y.)    139,  23  A.  D.  778; 
Woodward  v.  Blue,  107  N.  C.  407,  22  A.  S.  R.  897;  Cannon  v.  Cannon,  7 
Huinph.  (Tenn.)  410. 

549  Legge  v.  Edmonds,  25  Law  J.  Ch.  125;  Bury's  Case,  5  Coke,  98b; 
Head  v.  Head,  1  Sim.  &  S.  150,  Turn.  &  R.  138;  Lomax  v.  Holmden,  2 
Strange,  940;   Plowes  v.  Bossey,  31  Law  J.  Ch.  681;   Morris  v.  Davis, 
5  Clark  &  F.  163,  265;  Hargrave  v.  Hargrave,  9  Beav.  552;  Atchley  v. 
Sprigg,  33  Law  J.  Ch.  345;  Sullivan  v.  Hugly,  32  Ga.  316,  322;  Bruce  v. 
Patterson,  102  Iowa,  184,  186;  State  v.  Romaine,  58  Iowa,  46;  Vernon 
v.  Vernon's  Heirs,  6  La.  Ann.  242;   Phillips  v.  Allen,  2  Allen   (Mass.) 


§  61  LIFE,  DEATH  AND  SURVIVORSHIP.  251 

at  or  about  the  time  when  the  child  was  conceived  is  proved, 
nothing  will  defeat  the  presumption  short  of  impossibility  of 
impregnation;550  but  in  the  absence  of  proof  of  actual  sexual 
connection,  the  party  disputing*  the  presumption  is  not  bound 
to  show  such  facts  as  to  render  it  impossible  that  sexual  inter- 
course could  have  taken  place  between  the  spouses.581 

O.  LIFE,  DEATH,  AND  SURVIVORSHIP. 

§  61.    Continuance  of  life. 

Life,  shown  to  have  once  existed,  is  presumed  to  continue 
for  a  reasonable  length  of  time,  in  the  absence  of  evidence  ta 
the  contrary.  If,  therefore,  a  person  is  shown  to  have  been 
alive  at  a  particular  time  in  the  past,  the  presumption  is  that 
he  is  alive  at  a  later  time,  and  the  burden  of  showing  that  he 
has  died  in  the  interim  rests  on  the  party  who  asserts  it.582 

453;  Sullivan  v.  Kelly,  3  Allen  (Mass.)  148;  Egbert  v.  Green  wait,  44 
Mich.  245,  38  A.  R.  260;  Cross  v.  Cross,  3  Paige  (N.  Y.)  139,  23  A.  D. 
778;  Van  Aernam  v.  Van  Aernam,  1  Barb.  Ch.  (N.  Y.)  375;  Scott  v, 
Hillenberg,  85  Va.  245. 

If  the  child  is  born  so  soon  after  marriage  that  it  must  have  been 
begotten  before  that  event,  the  evidence  in  rebuttal  need  not  be  so 
strong  as  in  the  ordinary  case.  Wright  v.  Hicks,  15  Ga.  160,  60  A.  D. 
687;  Wilson  v.  Babb,  18  S.  C.  59. 

BSD  Morris  v.  Davis,  5  Clark  &  F.  163,  243;  Wright  v.  Hicks,  15  Ga. 
160,  60  A.  D.  687;  Cross  v.  Cross,  3  Paige  (N.  Y.)  139,  23  A.  D.  778; 
Warlick  v.  White,  76  N.  C.  175,  177. 

The  same  is  true  where  it  appears  that  the  spouses  slept  together. 
Legge  v.  Edmonds,  25"  Law  J.  Ch.  125. 

65istegall  v.  Stegall's  Adm'r,  2  Brock.  256,  Fed.  Cas.  No.  13,351; 
Wright  v.  Hicks,  15  Ga.  160,  60  A.  D.  687;  Phillips  v.  Allen,  2 
Allen  (Mass.)  453  (semble);  Van  Aernam  v.  Van  Aernam,  1  Barb.  Ch. 
(N.  Y.)  375;  Shuler  v.  Bull,  15  S.  C.  421.  Contra,  Patterson  v.  Gaines, 
6  How.  (U.  S.)  550. 

ess  Benson  v.  Olive,  2  Strange,  920;  Wilson  v.  Hodges,  2  East,  312; 
Battin's  Lessee  v.  Bigelow,  Pet.  C.  C.  452,  Fed.  Cas.  No.  1,108;  Gille- 
land's  Lessee  v.  Martin,  3  McLean,  490,  Fed.  Cas.  No.  5,433;  Stevens 
v  McNamara,  36  Me.  176,  58  A.  D.  740;  Peabody  v.  Hewett,  52  Me.  33, 


252  LAW   OF   EVIDENCE.  §  62 

This  presumption  is  not  conclusive.  It  may  be  rebutted  by 
evidence  of  facts  and  circumstances  tending  to  dispel  the 
probability  of  the  continuance  of  life ;  and  when  such  evidence 
has  been  adduced,  the  presumption  vanishes,  and  the  question 
of  life  becomes  one  of  fact  for  the  determination  of  the  jury.553 
The  presumption  of  continuance  of  life  may  be  indulged, 
even  though  the  person  in  question  is  thereby  assumed  to  live 
beyond  the  average  age  of  man  ;554  but  it  will  not  be  presumed 
that  a  person  is  living  if  it  involves  an  assumption  of  an  age 
of  one  hundred  years  or  more.555 

§  62.    Death  of  absentee. 

If  a  person  has  been  absent  from  his  residence  for  a  period 

83  A.  D.  486;  Schaub  v.  Griffin,  84  Md.  557;  Com.  v.  McGrath,  140  Mass. 
296;  Hancock  v.  American  L.  Ins.  Co.,  62  Mo.  26;  Smith  v.  Knowlton, 
11  N.  H.  191;  O'Gara  v.  Eisenlohr,  38  N.  Y.  296;  Com.  v.  Harman,  4  Pa. 
269;  Proctor  v.  McCall,  2  Bailey  (S.  C.)  298,  23  A.  D.  135.  See,  how- 
ever, Jarboe  v.  McAtee's  Heirs,  7  B.  Mon.  (Ky.)  279,  282;  Claflin  v. 
B.  &  A.  R.  Co.,  157  Mass.  489,  20  L.  R.  A.  638. 

A  presumption  of  death  may  arise,  however,  if  a  man  has  been  ab- 
sent and  unheard  of  for  seven  years.  See  §  62,  infra.  But  there  is 
no  presumption  that  a  person  who  has  been  absent  and  unheard  of  for 
seven  years  continued  to  live  until  the  expiration  of  that  period,  or 
until  any  particular  time  within  that  period.  See  §  62 (d),  infra. 

553  Lapsley  v.  Grierson,  1  H.  L.  Cas.  498;  State  v.  Plym,  43  Minn. 
385,  Thayer,  Cas.  Ev.  60. 

Presumption  of  continuance  of  life  of  absent  spouse,  as  dispelled  by 
subsequent  remarriage  of  other  spouse,  see  §  62 (c). 

Evidence  tending  to  show  death  of  an  absentee  within  an  earlier 
period  than  seven  years,  see  §  62 (c),  infra. 

55*  Hall's  Deposition,  1  Wall.  Jr.  85,  Fed.  Cas.  No.  5,924;  Watson  v. 
Tindal,  24  Ga.  494,  71  A.  D.  142;  Hammond's  Lessee  v.  Inloes,  4  Md. 
138.  See,  however,  Innis  v.  Campbell,  1  Rawle  (Pa.)  373. 

By  the  civil  law,  a  man  is  presumed  to  live  to  the  age  of  one  hun- 
dred years,  in  the  absence  of  evidence  to  the  contrary.  Hayes  v.  Ber- 
wick, 2  Mart.  (La.)  138,  5  A.  D.  727;  Willett  v.  Andrews,  51  La.  Ann. 
486. 

*55  Miller  v.  McElwee,  12  La.  Ann.  476;  Hammond's  Lessee  v.  Inloes, 
4  Md.  138.  And  see  Young  v.  Schulenberg,  165  N.  Y.  385. 


§  62a  LIFE,  DEATH  AND  SURVIVORSHIP.  253 

of  seven  years,  and  in  that  time  he  has  not  been  heard  of  by 
any  one  who  would  naturally  hear  of  him  were  he  alive,  a 
presumption  arises  that  he  is  dead,558  unless  the  circumstances 
are  such  as  to  account  for  his  not  being  heard  of  without  as- 
suming his  death.557 

(a)  Residence  of  absentee.    Absence  from  the  supposed  de- 

656  Doe  d.  Lloyd  v.  Deakin,  4  Barn.  &  Aid.  433  (semble) ;  Hopewell 
v.  De  Pinna,  2  Camp.  113;  Davie  v.  Briggs,  97  U.  S.  628;  Crawford  v. 
Elliott,  1  Houst.  (Del.)  465;  Doe  d.  Gofer  v.  Roe,  1  Kelly  (Ga.)  538; 
Adams'  Ex'rs  v.  Jones'  Adm'r,  39  Ga.  479;  Watson  v.  Adams,  103  Ga. 
733;  Ryan  v.  Tudor,  31  Kan.  366;  Rockland  v.  Morrill,  71  Me.  455, 
456;  Hyde  Park  v.  Canton,  130  Mass.  505,  507  (semble);  Stockbridge's 
Petition,  145  Mass.  517;  Winship  v.  Conner,  42  N.  H.  341;  Lewis  v. 
Mobley,  20  N.  C.  (4  Dev.  &  B.)  323,  34  A.  D.  379;  University  of  N.  C. 
v.  Harrison,  90  N.  C.  385;  Burr  v.  Sim,  4  Whart.  (Pa.)  150,  33  A.  D. 
50;  Bradley  v.  Bradley,  4  Whart.  (Pa.)  173;  Woods  v.  Woods'  Adm'r, 
2  Bay  (S.  C.)  476;  Bardin  v.  Bardin,  4  S.  D.  305,  46  A.  S.  R.  791; 
Primm  v.  Stewart,  7  Tex.  178;  Whiteley  v.  Equitable  L.  A.  Soc.,  72 
Wis.  170. 

For  a  history  of  this  presumption,  see  Thayer,  Prel.  Treat.  Ev.  319. 
And  see,  generally,  7  Current  Law,  1082. 

In  the  following  cases  the  presumption  was  in  process  of  develop- 
ment: Doe  d.  George  v.  Jesson,  6  East,  80,  Thayer,  Gas.  Ev.  52;  Miller 
v.  Beates,  3  Serg.  &  R.  (Pa.)  490,  8  A.  D.  658. 

This  presumption  does  not  obtain  in  the  civil  law.  Hayes  v.  Ber- 
wick, 2  Mart.  (La.)  138,  5  A.  D.  727. 

The  presumption  is  governed  by  statute  in  some  states.  Louisville 
Bank  v.  Trustees  of  Public  Schools,  83  Ky.  219;  Boyd  v.  New  England 
M.  L.  Ins.  Co.,  34  La.  Ann.  848;  Learned  v.  Corley,  43  Miss.  687;  Hoyt 
v.  Newbold,  45  N.  J.  Law,  219,  46  A.  R.  757;  Osborn  v.  Allen,  26  N.  J. 
Law,  388;  Wambaugh  v.  Schenck,  2  N.  J.  Law,  167;  Smith  v.  Combs, 
49  N.  J.  Eq.  420;  Smith  v.  Smith's  Ex'rs,  5  N.  J.  Eq.  484. 

557  Watson  v.  England,  14  Sim.  28;  Bowden  v.  Henderson,  2  Smale 
&  G.  360;  Baden  v.  McKenny,  7  Mackey  (D.  C.)  268. 

It  seems  that  the  presumption  does  not  apply  to  children  of  tender 
years  who  have  no  control  over  their  movements.  Manley  v.  Pattison, 
73  Miss.  417,  55  A.  S.  R.  543. 

In  some  cases,  the  fact  that  the  absentee  left  for  temporary  purposes 
seems  to  be  essential  to  the  creation  of  the  presumption.  Wentworth 
y.  Wentworth,  71  Me.  72;  Johnson  v.  Merithew,  80  Me.  Ill,  6  A.  S.  R. 
162;  Loring  v.  Steineman,  1  Mete.  (Mass.)  204. 


254  LAW  OF  EVIDENCE.  §  62a 

cedent's  residence  must  be  shown,  else  the  presumption  of 
death  does  not  arise.558  Accordingly,  one's  absence  from  a 
particular  place  raises  no  presumption  of  his  death  where  there 
is  no  evidence  that  he  had  established  his  residence  there.589 

The  presumption  assumes  the  death  of  absentees  only.  The 
rule  does  not  allow  a  living  absentee  to  assume  the  death  of 
those  whom  he  left  behind  him.560  Thus,  if  a  woman  deserts 
her  husband,  and  remains  away  for  more  than  seven  years  with- 
out hearing  of  him,  a  presumption  of  his  death  does  not  arise 
in  her  favor.561 

Absence  of  seven  years,  to  give  rise  to  a  presumption  of 
death,  must  be  absence  from  the  last  residence  or  place  of  re- 
sort of  the  person  in  question.  Seven  years'  absence  from  an 
earlier  residence  is  not  sufficient.502  It  follows  that,  before  the 
presumption  can  arise,  it  must  appear  that  inquiry  has  been 
made  at  the  residence  of  the  absentee  abroad,  if  he  had  a  res- 
idence there.563 

The  burden  of  showing  a  change  of  residence  or  domicile 
rests,  it  seems,  on  the  party  who  asserts  it.  Mere  abandon- 
ment of  residence  does  not  defeat  the  presumption  of  death 

558  Spurr  v.  Trimble,  1  A.  K.  Marsh.  (Ky.)  278;  Thomas  v.  Thomas, 
16  Neb.  553;  Puckett  v.  State,  1  Sneed  (Tenn.)  355.    See  Doe  d.  France 
v.  Andrews,  15  Q.  B.  756;  Hall's  Deposition,  1  Wall.  Jr.  85,  Fed.  Gas. 
No.  5,924;  Garwood  v.  Hastings,  38  Cal.  217. 

559  Stinchfield  v.  Emerson,  52  Me.  465,  83  A.  D.  524. 

seo  Faulkner's  Adm'r  v.  Williman,  13  Ky.  L.  R.  106,  16  S.  W.  352; 
Hyde  Park  v.  Canton,  130  Mass.  505,  507  (semble). 

561  Com.  v.  Thompson,  11  Allen   (Mass.)   23,  87  A.  D.  685.    And  see 
Thomas  v.  Thomas,  16  Neb.  553. 

562  Hitz  v.  Ahlgren,  170  111.  60;  Gray  v.  McDowell,  6  Bush  (Ky.)  475; 
Keller  v.  Stuck,  4  Redf.  (N.  Y.)   294;  Francis  v.  Francis,  180  Pa.  644, 
57  A.  S.  R.  668. 

663  in  re  Creed,  1  Drew.  235;  McMahon  v.  McElroy,  Ir.  Rep.  5  Eq.  1; 
Wentworth  v.  Wentworth,  71  Me.  72,  74  (semble) ;  McCartee  v.  Camel, 
1  Barb.  Ch.  (N.  Y.)  455. 


§  62c  LIFE,  HEATH  AND  SURVIVORSHIP.  255 

arising  from  seven  years'  absence  from  that  residence,  if  it 
does  not  appear  that  a  new  residence  has  been  gained.86* 

Absence  from  the  United  States  or  from  the  state  is  not 
necessary  to  raise  the  presumption.  Seven  years'  absence  from 
the  last  known  residence  or  place  of  resort  of  the  person  in 
question,  coupled  with  lack  of  intelligence,  is  sufficient  to  raise 
the  presumption  without  a  showing  of  absence  from  the  state 
or  country.565 

(b)  Lack  of  tidings.    One  of  the  essential  facts  on  which  the 
presumption  is  founded  is  that  the  absentee  has  not  been  heard 
-of  by  those  who  would  naturally  hear  of  him  were  he  living. 
The  fact  that  mere  acquaintances  or  persons  with  whom  he 
was  not  on  good  terms  have  not  heard  of  him  is  not,  as  a  rule, 
sufficient  to  raise  the  presumption.866 

(c)  Time  of  absence.     To  raise  the  presumption  of  death,  the 
absence  must  be  for  the  full  period  of  seven  years  or  longer.567 
This  period  was  inserted  in  early  English  statutes  relating  to 

5«4  Winship  v.  Conner,  42  N.  H.  341. 

565  Doe  d.  Coper  v.  Roe,  1  Kelly  (Ga.)  538,  543. 

B6«  Doe  d.  France  v.  Andrews,  15  Q.  B.  756 ;  McMahon  v.  McBlroy, 
Ir.  Rep.  5  Eq.  1;  Hitz  v.  Ahlgren,  170  111.  60;  Wentworth  v.  Went- 
worth,  71  Me.  72,  74  (semble) ;  Manley  v.  Pattison,  73  Miss.  417,  55 
A.  S.  R.  543  (semble);  Thomas  v.  Thomas,  16  Neb.  553;  Brown  v. 
Jewett,  18  N.  H.  230,  232  (semble).  And  see  Hall's  Deposition,  1 
Wall.  Jr.  85,  Fed.  Cas.  No.  5,924;  Smith  v.  Smith,  49  Ala.  156.  See  § 
62  (e),  infra.  In  so  far  as  the  facts  of  the  case  tend  to  bring  it  in 
conflict  with  the  rule  stated  in  the  text,  the  case  of  Garwood  v.  Hast- 
ings, 38  Cal.  216,  is  thought  to  be  unfounded  in  law. 

oeTAshbury  v.  Sanders,  8  Cal.  62,  68  A.  D.  300;  Cone  v.  Dunham, 
59  Conn.  145,  8  L.  R.  A.  647;  Whiting  v.  Nicholl,  46  111.  230,  92  A.  D. 
248;  State  v.  Henke,  58  Iowa,  457;  Ryan  v.  Tudor,  31  Kan.  366; 
Stevens  v.  McNamara,  36  Me.  176,  58  A.  D.  740;  Newman  v.  Jenkins, 
10  Pick.  (Mass.)  515;  O'Gara  v.  Eisenlohr,  38  N.  Y.  296;  Stouvenel 
v.  Stephens,  2  Daly  (N.  Y.)  319;  Mut  Ben.  Co.'s  Petition,  174  Pa.  1, 
52  A.  S.  R.  814. 


256  LAW   OF   EVIDENCE.  §   62c 

bigamy  and  to  leases  and  estates  depending  upon  the  life  of 
a  person  who  should  go  beyond  the  seas  or  otherwise  absent 
himself  within  the  kingdom,  and  finally  came  to  be  adopted  by 
the  courts  in  other  cases  from  analogy.568 

While  seven  years'  absence  is  required  to  raise  the  presump- 
tion of  law,  yet  the  facts  of  the  particular  case  may  be  such 
as  to  justify  an  inference  of  death  within  a  shorter  period.569' 
If,  for  instance,  the  absentee,  when  last  heard  of,  was  in  des- 
perate health,570  or  of  dissipated  habits,571  either  of  these 
facts,  coupled  with  unexplained  absence  and  lack  of  tidings, 
may  justify  an  inference  of  death.  So,  if  the  absentee  is  known 
to  have  encountered  a  specific  peril  of  unusual  risk,  since  which 
time  he  has  not  been  heard  of,  an  inference  of  death  is  justi- 
fied;572 and  the  same  is  true  where  the  absentee  is  known  to 
have  sailed  on  a  voyage  which  should  long  since  have  been 
completed,  and  neither  vessel,  crew,  nor  passengers  have  since 
been  heard  of.573  Evidence  of  the  absentee 's  character,  habits, 

sesThayer,  Prel.  Treat.  Ev.  319;  Greenl.  Ev.  §  41. 

669  in  re  Matthews,  67  Law  J.  Prob.  11,  [1898]  Prob.  Div.  17,  77 
Law  T.  (N.  S.)  630;  Garden  v.  Garden,  2  Houst.  (Del.)  574;  Waite  v. 
Coaracy,  45  Minn.  159;  Puckett  v.  State,  1  Sneed  (Tenn.)  355. 

570  Danby  v.  Danby,  5  Jur.  N.  S.   (pt.  1)   54;   In  re  Beasney's  Trusts, 
L.  R.  7  Eq.  498;  Webster  v.  Birchmore,  13  Ves.  362;  Leach  v.  Hall,  95- 
lowa,  611;   In  re  Ackerman,  2  Redf.   (N.  Y.)   521.    And  see  Wagoner 
v.  Wagoner,  128  Mich.  635;  Wilkie  v.  Collins,  48  Miss.  496. 

571  in  re  Beasney's  Trusts,  L.  R.  7  Eq.  498;  Stouvenel  v.  Stephens,  2: 
Daly  (N.  Y.)   319. 

572  Rex  v.  Twyning,  2  Barn.  &  Aid.  386;   Davie  v.  Briggs,  97  U.  S. 
628;  Boyd  v.  New  England  M.  L.  Ins.  Co.,  34  La.  Ann.  848;  Lancaster 
v.  Wash.  L.  Ins.  Co.,  62  Mo.  121. 

To  raise  the  presumption  of  death  within  a  less  period  than  seven 
years,  the  unusual  risk  must  be  a  specific  one.  Mut.  Ben.  Co.'s  Peti- 
tion, 174  Pa.  1,  52  A.  S.  R.  814. 

573  in  re  Hutton,  1  Curt.  Ecc.  595;  Watson  v.  King,  1  Starkie,  121; 
Lakin  v.  Lakin,  34  Beav.  443  (semble) ;  In  re  Main,  1  Swab.  &  Tr.  11; 
In  re  Norris,  1  Swab.  &  Tr.  6;  In  re  Cooke,  Ir.  Rep.  5  Eq.  240;  White 
v.  Mann,  26  Me.  361;  Johnson  v.  Merithew,  80  Me.  Ill,  6  A.  S.  R.  162; 


§   62C  LIFE,  DEATH  AND  SURVIVORSHIP.  257 

domestic  and  business  relations,  and  the  like,  making  the  aban- 
donment of  home  improbable,  may  also  justify  an  inference  of 
death,  even  though  seven  years  have  not  elapsed  since  his  dis- 
appearance.574 In  these  cases,  it  is  to  be  borne  in  mind,  the 
fact  of  death  is  inferred,  not  presumed.  To  give  rise  to  the 
presumption  of  death  from  mere  absence,  unheard  of,  a  period 
of  seven  years  must  elapse.575 

Death  of  absent  spouse.    An  apparent  exception  to  this 

latter  rule  exists  in  cases  where  one  spouse  abandons  the  other, 
and  the  latter,  within  a  period  of  seven  years,  remarries.  The 
fact  of  remarriage,  in  connection  with  long  absence  of  the 
former  spouse,  or  other  circumstances,  may  rebut  the  presump- 
tion of  the  absentee 's  continuance  in  life ;  and  it  is  often  pre- 
sumed, in  favor  of  the  second  marriage,  that  at  the  time  it  was 
consummated  the  absentee  was  dead,  and  the  burden  of  show- 
ing the  contrary  is  accordingly  cast  on  the  party  who  attacks 
the  marriage.676  The  courts,  by  giving  the  presumption  of 

Gerry  v.  Post,  13  How.  Pr.  (N.  Y.)  118;  Gibbes  v.  Vincent,  11  Rich. 
Law  (S.  C.)  323.  Contra,  Ashbury  v.  Sanders,  8  Cal.  62,  68  A.  D.  300. 

If  no  intelligence  is  received  of  a  vessel  within  a  reasonable  time 
after  she  leaves  port  for  a  certain  voyage,  the  presumption  is  that 
she  has  foundered  at  sea.  Houstman  v.  Thornton,  Holt  N.  P.  242; 
Green  v.  Brown,  2  Strange,  1199;  Gordon  v.  Bowne,  2  Johns.  (N.  Y.) 
150.  See  Twemlow  v.  Oswin,  2  Camp.  85;  In  re  Bishop,  1  Swab.  & 
Tr.  303;  King  v.  Paddock,  18  Johns.  (N.  Y.)  141.  The  mere  fact  of 
his  having  gone  to  sea,  however,  will  not  justify  a  presumption  of  the 
absentee's  death  within  a  less  time  than  seven  years.  Smith  v.  Knowl- 
ton,  11  N.  H.  191;  Burr  v.  Sim,  4  Whart.  (Pa.)  150,  33  A.  D.  50. 

674  Sensenderfer  v.  Pac.  M.  L.  Ins.  Co.,  19  Fed.  68;  Tisdale  v.  Conn. 
M.  L.  Ins.  Co.,  26  Iowa,  170,  96  A.  D.  136;  Ryan  v.  Tudor,  31  Kan. 
366;  Cox  v.  Ellsworth,  18  Neb.  664,  53  A.  R.  827.  See,  however,  Mut. 
Ben.  Co.'s  Petition,  174  Pa.  1,  52  A.  S.  R.  814. 

575  Cases  cited  in  note  567,  supra. 

676  Rex  v.  Twynicg,  2  Barn.  &  Aid.  386;  Sharp  v.  Johnson,  22  Ark. 
79;  Cash  v.  Cash,  67  Ark.  278;  Johnson  v.  Johnson,  114  111.  611,  55  A. 
R.  883;  Cartwright  v.  McGown,  121  111.  388,  2  A.  S.  R.  105  (semble) ; 
Squire  v.  State,  46  Ind.  459;  Cooper  v.  Cooper,  86  Ind.  75;  McCaffrey 
v.  Benson,  38  La.  Ann.  198;  Le  Brun  v.  Le  Brun,  55  Md.  496;  Spears 

Hammon,  Ev. — 17. 


258  LAW   OF   EVIDENCE.  g   62c 

death  this  effect  on  the  burden  of  proof,  necessarily  brand  it 
as  a  presumption  of  law.577  In  many  cases,  however,  the  cir- 
cumstances are  such  as  to  create  a  presumption  of  fact  merely ; 
that  is  to  say,  the  fact  of  remarriage  under  some  circumstances 
does  not  necessitate  a  finding  of  death,  as  does  the  presump- 
tion of  law,  but  merely  justifies  such  a  finding  if  it  seems  rea- 
sonable to  the  jury  to  make  it.  Here,  therefore,  the  question 
of  life  or  death  is  one  for  the  jury,  and  a  finding  either  way 
will  be  sustained.578 

v.  Burton,  31  Miss.  547;  Wilkie  v.  Collins,  48  Miss.  496;  Klein  v. 
Laudman,  29  Mo.  259;  Chapman  v.  Cooper,  5  Ricn.  Law  (S.  C.)  452; 
Nixon  v.  Wichita  L.  &  C.  Co.,  84  Tex.  408;  Carroll  v.  Carroll,  20  Tex. 
731;  Lockhart  v.  White,  18  Tex.  102;  Greensborough  v.  Underbill,  12 
Vt.  604. 

This  presumption  does  not  arise  in  favor  of  a  man  who  leaves  the 
state  with  his  wife,  and  returns  shortly  after  with  another  woman, 
and  cohabits  with  her.  Howard  v.  State,  75  Ala.  27. 

577  See  page  50,  supra. 

578  ENGLAND:     Rex   v.   Harborne,    2   Adol.   &   E.   540;    Reg.   v.   Will- 
shire,  6  Q.  B.  Div.  366;  Reg.  v.  Lumley,  L.  R.  1  Cr.  Gas.  196. 

ALABAMA:     Parker  v.  State,  77  Ala.  47,  54  A.  R.  43. 

CALIFORNIA:  Hunter  v.  Hunter,  111  Cal.  261,  52  A.  S.  R.  180;  Peo- 
ple v.  Feilen,  58  Cal.  218,  41  A.  R.  258. 

MASSACHUSETTS:  Kelly  v.  Drew,  12  Allen,  107,  90  A.  D.  138;  Com. 
v.  McGrath,  140  Mass.  296;  Com.  v.  Caponi,  155  Mass.  534. 

MICHIGAN:  Wagoner  v.  Wagoner,  128  Mich.  635;  Dixon  v.  People, 
18  Mich.  84. 

MINNESOTA:     State  v.  Plym,  43  Minn.  385,  Thayer,  Cas.  Ev.  60. 

MISSISSIPPI:     Hull  v.  Rawls,  27  Miss.  471. 

NEBRASKA:     Reynolds  v.  State,  58  Neb.  49. 

PENNSYLVANIA:     Breiden  v.  Paff,  12  Serg.  &  R.  430. 

TEXAS:  Yates  v.  Houston,  3  Tex.  433;  Gorman  v.  State,  23  Tex. 
646. 

WEST  VIRGINIA:     State  v.  Goodrich,  14  W.  Va.  834. 

WISCONSIN:  Williams  v.  Williams,  63  Wis.  58,  53  A.  R.  253,  257 
(semble). 

In  some  cases  the  circumstances  have  been  held  insufficient  as  a 
matter  of  law  to  justify  a  finding  that  the  former  spouse  was  dead. 
Hyde  Park  v.  Canton,  130  Mass.  505. 


§   62d  LIFE,  DEATH.  AND  SURVIVORSHIP.  259 

Letters  of  administration — Letters  testamentary.  The 

grant  of  letters  of  administration570  or  of  letters  testamen- 
tary580 also  makes,  in  collateral  proceedings,  a  prima  facie  case 
of  the  death  of  the  absentee,  without  reference  to  the  time  of 
his  absence. 

(d)  Time  of  death.  The  presumption  of  death  arising  from 
seven  years'  absence  without  tidings  assumes  the  fact  that  the 
absentee  is  dead  after  the  expiration  of  the  seven  years,  and 
this  is  all  that  it  assumes.  The  court  cannot  presume  that  life 
continued  during  the  seven  years'  period,  or  any  part  of  it, 
nor  that  it  did  not  so  continue.  It  cannot  presume  that  death 
occurred  at  or  before  the  expiration  of  that  time ;  nor  that  it 
did  not  so  occur.  To  whosesoever  case  it  is  essential  that  the 
absentee  continued  to  live  during  the  seven  years'  period,  or 
any  part  of  it,  on  the  one  hand,  or  that  the  absentee  died  at 
.or  before  the  lapse  of  that  time,  on  the  other  hand,  on  that 
party  lies  the  burden  of  proof.581  In  some  states,  however,  this 

In  Maine,  .the  statute  places  the  burden  of  proving  death  of  the 
former  spouse  on  the  spouse  subsequently  remarrying.  Harrison  v. 
Lincoln,  48  Me.  205. 

579  Jenkins  v.  Peckinpaugh,  40  Ind.  133;  Tisdale  v.  Conn.  M.  L.  Ins. 
Co.,  26  Iowa,  170,  96  A.  D.  136;  French  v.  Frazier's  Adm'r,  7  J.  J. 
Marsh.  (Ky.)  425;  Peterkin  v.  Inloes,  4  Md.  175;  Newman  v.  Jenkins, 
10  Pick.  (Mass.)  515;  Lancaster  v.  Wash.  L.  Ins.  Co.,  62  Mo.  121; 
Jeffers  v.  Radcliff,  10  N.  H.  242. 

ssoHurlburt  v.  Van  Wormer,  14  Fed.  709.  See  Doe  d.  Hall  v.  Pen- 
fold,  8  Car.  &  P.  536. 

osiNepean  v.  Knight,  2  Mees.  &  W.  894,  910,  Thayer,  Cas.  Ev.  54; 
In  re  Lewes'  Trusts,  L.  R.  11  Eq.  236,  6  Ch.  App.  356;  In  re  Phene's 
Trusts,  5  Ch.  App.  139,  Thayer,  Cas.  Ev.  57;  In  re  Corbishley's  Trusts, 
14  Ch.  Div.  846;  In  re  Benjamin,  71  Law  J.  Ch.  319,  [1902]  1  Ch.  723, 
86  Law  T.  (N.  S.)  287;  Rhodes  v.  Rhodes,  36  Ch.  Div.  586;  Doe  d. 
Hagerman  v.  Strong,  4  U.  C.  Q.  B.  510,  8  U.  C.  Q.  B.  291;  Davie  v. 
Briggs,  97  U.  S.  628;  Johnson  v.  Johnson,  114  111.  611,  616  (semble); 
Johnson  v.  Merithew,  80  Me.  Ill,  6  A.  S.  R.  162;  Schaub  v.  Griffin,  84 
Md.  557;  Sprigg  v.  Moale,  28  Md.  497,  92  A.  D.  698;  Hancock  v.  Amer- 
ican L.  Ins.  Co.,  62  Mo.  26;  McCartee  v.  Camel,  1  Barb.  Ch.  (N.  Y.) 


260  LAW  OF  EVIDENCE.  §  62e 

view  does  not  fully  prevail,  and  it  is  held  that  the  presumption 
of  continuance  of  life  operates  up  to  the  close  of  the  seven 
years'  period,  and  that  the  burden  of  showing  death  before 
that  time  rests  on  the  party  asserting  it.582 

(e)  Rebuttal  of  presumption.  The  presumption  of  death 
arising  from  seven  years'  absence  is  a  presumption  of  law,  but 
it  is  not  conclusive ;  its  sole  effect  is  to  cast  on  the  party  against 
whom  it  operates  the  burden  of  adducing  evidence  that  the  ab- 
sentee was  living  after  the  close  of  that  period.583 

To  rebut  the  presumption,  it  is  not  necessary  to  produce  per- 
sons who  have  seen  the  absentee,  nor,  in  some  jurisdictions, 

455;  State  v.  Moore,  33  N.  C.  (11  Ired.)  160,  53  A.  D.  401  (semble); 
Spencer  v.  Roper,  35  N.  C.  (13  Ired.)  333;  Whiteley  v.  Equitable  L.  A. 
Soc.,  72  Wis.  170. 

Death  within  the  seven  years'  period  may  be  shown  by  circumstan- 
tial evidence.  Hickman  v.  Upsall,  L.  R.  20  Eq.  136,  4  Ch.  Div.  144; 
Sillick  v.  Booth,  1  Younge  &  C.  Ch.  117;  Hancock  v.  American  L.  Ins. 
Co.,  62  Mo.  26;  Smith  v.  Knowlton,  11  N.  H.  191;  Sheldon  v.  Ferris, 
45  Barb.  (N.  Y.)  124;  Shown  v.  McMackin,  9  Lea  (Tenn.)  601,  42  A. 
R.  681.  And  see  Cambrelleng  v.  Purton,  125  N.  Y.  610. 

582  Montgomery  v.  Bevans,  1  Sawy.  653,  Fed.  Gas.  No.  9,735;  Whit- 
ing v.  Nicholl,  46  111.  230,  92  A.  D.  248;  Reedy  v.  Millizen,  155  111.  636; 
Smith  v.  Knowlton,  11  N.  H.  191;  Clarke's  Ex'rs  v.  Canfleld,  15  N.  J. 
Eq.  119;  Eagle  v.  Emmet,  4  Bradf.  Sur.  (N.  Y.)  117,  3  Abb.  Pr.  218; 
Mut.  Ben.  Co.'s  Petition,  174  Pa.  1,  52  A.  S.  R.  814;  Corley  v.  Holloway, 
22  S.  C.  380.  And  see  In  re  Tindall's  Trust,  30  Beav.  151. 

ess  Adams'  Ex'rs  v.  Jones'  Adm'r,  39  Ga.  479;  Loring  v.  Steineman, 
1  Mete.  (Mass.)  204,  211  (semble);  Com.  v.  Thompson,  6  Allen  (Mass.) 
591,  83  A.  D.  653;  Dowd  v.  Watson,  105  N.  C.  476,  18  A.  S.  R.  920; 
Youngs  v.  Heffner,  36  Ohio  St.  232;  Thomas  v.  Thomas,  124  Pa.  646. 

In  some  cases  this  presumption  has  been  termed  a  presumption  of 
fact,  though  erroneously.  Flynn  v.  Coffee,  12  Allen  (Mass.)  133,  134; 
Dowd  v.  Watson,  105  N.  C.  476,  18  A.  S.  R.  920.  Doubtless  all  that 
was  meant  is  that  the  presumption  is  disputable,  which  is  correct. 

In  some  states  it  is  declared  by  statute  that  if  a  spouse  has  been 
absent  for  five  years,  unheard  of,  and  the  other  remarries,  the  second 
marriage  is  valid  until  annulled  by  decree,  although  the  absent  spouse 
be  living.  Charles  v.  Charles,  41  Minn.  201;  Price  v.  Price,  124  N.  Y. 
589.  And  see  Bardin  v.  Bardin,  4  S.  D.  305,  46  A.  S.  R.  791. 


§  62e  LIFE,  DEATH  AND  SURVIVORSHIP.  261 

to  produce  letters  received  from  him,  within  the  seven  years' 
period.  The  rule  against  hearsay  is  said  not  to  apply.  It  is 
accordingly  competent  to  show  that  the  absentee  was  reported 
among  his  relatives,  friends,  or  acquaintances  to  have  been 
alive  within  that  period.584  If  the  report  is  vague,  and  is  shown 
to  be  without  foundation,  it  is  not  sufficient  to  overcome  the 
presumption;586  but  its  vagueness  and  lack  of  foundation  go 
to  its  weight  as  evidence,  not  to  its  admissibility.  Thus,  a 
witness  has  been  allowed  to  testify  that  a  third  person  had 
told  him  that  he  (the  speaker)  had  seen  the  absentee  within 
the  seven  years.588  So,  a  witness  may  testify  that  he  has 
received  a  letter  from  the  supposed  decedent  within  that 
period.587 

The  presumption  may  be  rebutted  by  evidence  that  the  ab- 
sentee has  been  heard  from  within  seven  years  by  any  person 
whomsoever,  whether  or  not  such  person  is  one  who  would 
naturally  hear  from  the  absentee;588  and  it  is  competent  to 
show  that  the  absentee  has  been  mentioned  in  official  proceed- 
ings as  having  been  alive  within  the  seven  years'  period.589 

The  presumption  of  death  arising  from  the  grant  of  letters 
of  administration  or  letters  testamentary  is  also  rebuttable, 
and,  moreover,  is  said  to  be  of  little  weight.500 

584Flynn  v.  Coffee,  12  Allen  (Mass.)  133;  Dowd  v.  Watson,  105  N. 
C.  476,  18  A.  S.  R.  920. 

ess  Den  d.  Moore  v.  Parker,  34  N.  C.  (12  Ired.)  123. 

BBS  Dowd  v.  Watson.  105  N.  C.  476.  18  A.  S.  R.  920. 

Testimony  that  the  witness  himself  has  seen  the  supposed  decedent 
within  seven  years  of  course  rebuts  the  presumption  of  death.  O'Kelly 
v.  Felker,  71  Ga.  775. 

687  Smith  v.  Smith,  49  Ala.  156. 

In  some  states,  however,  the  letter  must  be  produced  and  verified, 
unless  it  has  been  lost  or  destroyed.  Brown  v.  Jewett,  18  N.  H.  230. 

ssswentworth  v.  Wentworth,  71  Me.  72,  74  (semble) ;  Flynn  v.  Cof- 
fee, 12  Allen  (Mass.)  133. 

«8»Keech  v.  Rinehart,  10  Pa.  240. 


262  LAW  OF  EVIDENCE.  §  62f 

(f)  Effect  of  presumption.  In  the  absence  of  evidence  in 
rebuttal,  the  presumption  of  death  arising  from  absence  op- 
erates, so  far  as  the  particular  case  is  concerned,  to  establish 
the  absentee's  death  as  a  fact. 

In  criminal  cases  the  presumption  will  be  given  effect  in  de- 
termining whether  the  act  of  the  accused  was  lawful.  Thus, 
in  a  trial  for  adultery  with  a  married  woman,  if  it  appears  that 
at  the  time  the  acts  in  question  occurred  the  husband  had  been 
absent  and  unheard  of  for  seven  years,  the  prosecution  fails, 
although  it  appears  in  the  trial  that  the  husband  was  then 
living.591  In  trials  for  murder,  however,  this  presumption  is 
not  given  effect  with  reference  to  the  corpus  delicti.  Proof 
of  death  is  not  dispensed  with  by  the  fact  that  the  alleged 
victim  has  been  absent  and  unheard  of  for  more  than  seven 
years.592 

In  civil  cases  death  established  by  means  of  this  presump- 
tion is  equivalent  to  actual  death,  so  far  as  the  parties  to  the 
suit  are  concerned  as  between  themselves,  provided  it  does  not 
appear  in  the  trial  that  the  absentee  was  living  at  the  time 
in  question,593  but  the  rights  of  the  absentee  are  not  affected 
thereby,  if  in  fact  he  is  living.  Accordingly,  if  his  property  is 
disposed  of  by  the  court  upon  the  assumption  of  his  death,  and 
he  subsequently  appears,  he  may  recover  it  back.594  So,  if  an 

590  Tisdale  v.  Conn.  M.  L.  Ins.  Co.,  26  Iowa,  170,  96  A.  D.  136;  Lan- 
caster v.  Wash.  L.  Ins.  Co.,  62  Mo.  121. 

In  an  action  by  the  administrator,  the  question  of  the  validity  of  the 
appointment  must  be  raised  by  plea  in  abatement,  else  the  letters  are 
conclusive  of  the  fact  of  death.  Newman  v.  Jenkins,  10  Pick.  (Mass.) 
615. 

In  some  states  this  presumption  has  been  held  to  be  conclusive  in 
collateral  proceedings.  Jenkins  v.  Peckinpaugh,  40  Ind.  133. 

58i  Com.  v.  Thompson,  6  Allen  (Mass.)  591,  83  A.  D.  653. 

592  Ruloff  v.  People,  18  N.  Y.  179. 

593  Rebuttal  of  presumption,  see  §  62  (e),  supra. 

594  Doe  d.  Lloyd  v.  Deakin,  4  Barn.  &  Aid.  433,  434  (semble) ;  Youngs 
v.  Heffner,  36  Ohio  St.  232. 


§  63  LIFE'  DEATH  AND  SURVIVORSHIP.  263 

administrator  of  his  estate  is  appointed  upon  the  erroneous 
assumption  of  his  death,  payment  made  to  the  administrator 
by  a  debtor  of  the  absentee  does  not  bar  a  recovery  of  the 
debt  by  the  latter  upon  his  subsequent  reappearance.595 

§  63.    Survivorship. 

If  two  or  more  persons  perish  in  a  common  disaster,  and 
nothing  more  appears,  there  is  no  presumption,  either  of  law 
or  of  fact,  with  reference  to  the  relative  moments  of  their  re- 
spective deaths.  Accordingly,  if  a  party  litigant  makes  an 
assertion  with  respect  to  the  matter,  he  has  the  burden  of  es- 
tablishing its  truth.896 

The  court  sometimes  requires  a  refunding  bond  of  the  distributees, 
BO  as  to  protect  the  rights  of  the  absentee  in  case  he  should  reappear. 
Cuthbert  v.  Furrier,  2  Phillips,  199;  Dowley  v.  Winfield,  14  Sim.  277; 
In  re  Mileham's  Trust,  15  Beav.  507. 

B95  Thomas  v.  People,  107  111.  517,  47  A.  R.  458;  Jochumsen  v.  Suffolk 
Sav.  Bank,  3  Allen  (Mass.)  87;  Devlin  v.  Com.,  101  Pa.  273,  47  A.  R. 
710. 

The  contrary  has  been  intimated  where  the  payment  to  the  ad- 
ministrator is  made  under  order  of  court.  Schaub  v.  Griffin,  84  Md. 
657. 

In  New  York  the  statutes  have  altered  the  rule  stated  in  the  text. 
Roderigas  v.  E.  R.  Sav.  Inst.,  63  N.  Y.  460,  20  A.  R.  555,  76  N.  Y.  316, 
32  A.  R.  309. 

ooe  Battle.    Cook  v.  Caswell,  81  Tex.  678,  683  (semble). 

Fire.  Middeke  v.  Balder,  198  111.  590,  92  A.  S.  R.  284;  In  re  Willbor, 
20  R.  I.  126,  51  L.  R.  A.  863;  In  re  Ehle's  Will,  73  Wis.  445. 

Flood.  Russell  v.  Hallett,  23  Kan.  276;  Cowman  v.  Rogers,  73  Md. 
403,  Thayer,  Gas.  Ev.  63. 

Railroad  wreck.    Kan.  Pac.  R.  Co.  v.  Miller,  2  Colo.  442,  464. 

Shipwreck.  Taylor  v.  Diplock,  2  Phillim.  Ecc.  261;  In  re  Selwyn, 
3  Hagg.  Ecc.  748;  In  re  Murray,  1  Curt.  Ecc.  596;  Wright  v.  Nether- 
wood,  2  Salk.  593;  Underwood  v.  Wing,  19  Beav.  459,  4  De  Gex,  M.  & 
G.  633;  Mason  v.  Mason,  1  Mer.  308,  312;  Wollaston  v.  Berkeley,  2  Ch. 
Div.  213,  215;  Wing  v.  Angrave,  8  H.  L.  Cas.  183;  Robinson  v.  Galller, 
2  Woods,  178,  Fed.  Cas.  No.  11,951;  Smith  v.  Groom,  7  Fla.  81;  Johnson 
v.  Merithew,  80  Me.  Ill,  6  A.  S.  R.  162;  Coye  v.  Leach,  8  Mete.  (Mass.) 


264  LAW   OF   EVIDENCE.  §   63 

There  being  no  presumption  of  survivorship,  it  follows  that 
the  rights  of  the  parties  litigant  are  often  disposed  of  as  if 
the  persons  in  question  had  died  simultaneously;  yet  there  is 
no  presumption  of  a  simultaneous  death.597  Cases  are  found, 
indeed,  wherein  it  is  said  that  persons  perishing  in  a  common 
disaster  must  be  presumed  to  have  died  at  the  same  time.598 
It  should  be  observed,  however,  that  these  are  not  cases  where- 
in it  was  necessary  to  prove  that  the  persons  died  simultane- 
ously. On  the  contrary,  the  statements  will  be  found  to  be 
mere  dicta,  put  out  in  overruling  the  argument  that  the  court 
should  presume  that  one  person  survived  the  other.  It  thus 
appears  that  the  question  of  survivorship  is  one  of  fact  to  be 
established  by  evidence  to  the  satisfaction  of  the  jury,  unaided 
and  unhampered  by  any  presumption  of  law. 

The  evidence  most  commonly  adduced  in  this  connection 
touches  the  physical  condition  'of  the  persons  who  perished; 
the  natural  inference  being,  when  other  things  are  equal,  that 

371,  41  A.  D.  518;  Fuller  v.  Linzee,  135  Mass.  468;  U.  S.  Casualty  Co. 
v.  Kacer,  169  Mo.  301,  92  A.  S.  R.  641;  Newell  v.  Nichols,  75  N.  Y. 
78,  31  A.  R.  424;  Stinde  v.  Goodrich,  3  Redf.  (N.  Y.)  87;  In  re  Ridgway, 
4  Redf.  (N.  Y.)  226;  Stinde  v.  Ridgway,  55  How.  Pr.  (N.  Y.)  301;  Pell  v. 
Ball,  Cheves,  Eq.  (S.  C.)  99.  And  see  Moehring  v.  Mitchell,  1  Barb. 
Ch.  (N.  Y.)  264;  In  re  Gerdes'  Estate,  100  N.  Y.  Supp.  440. 

Of  two  persons  lost  at  sea,  it  does  not  necessarily  follow  that  the 
one  last  seen  alive  was  the  survivor,  in  the  absence  of  evidence  of  the 
earlier  death  of  the  other,  though  such  an  inference  is  justified.  Stinde 
v.  Ridgway,  55  How.  Pr.  (N.  Y.)  301;  In  re  Ridgway,  4  Redf.  (N.  Y.) 
226;  Pell  v.  Ball,  Cheves,  Eq.  (S.  C.)  99. 

A  presumption  of  survivorship  is  created  by  statute  in  some  states. 
Sanders  v.  Simcich,  65  Cal.  50;  Hollister  v.  Cordero,  76  Cal.  649;  Rob- 
inson v.  Gallier,  2  Woods,  178,  Fed.  Cas.  No.  11,951. 

597  wing  v.  Angrave,  8  H.  L.  Cas.  183;  Middeke  v.  Balder,  198  111. 
590,  92  A.  S.  R.  284;  Cowman  v.  Rogers,  73  Md.  403,  Thayer,  Cas.  Ev. 
63,  64. 

5»8  Satterthwaite  v.  Powell,  1  Curt.  Ecc.  705;  Kan.  Pac.  R.  Co.  Y. 
Miller,  2  Colo.  442,  464. 


£  64  LIFE,  DEATH  AND  SURVIVORSHIP.  265 

the  stronger  survived  the  weaker.  As  bearing  on  the  question 
of  endurance,  it  is  usual  to  show  the  relative  ages  of  the  par- 
ties and  their  sex.609  As  between  male  and  female,  other  things 
being  equal,  the  natural  inference  is  that  the  male  succumbed 
last.000  If  both  persons  were  in  the  prime  of  life  at  the  time 
of  the  catastrophe,  a  difference  in  their  ages  has  but  little 
weight  on  the  question  of  survivorship.  Nor  would  it  lead  to 
conviction  where  one  person  was  extremely  old  and  the  other 
extremely  young,  since  in  such  a  case,  also,  their  endurance 
might  well  be  equal.  But  if  one  person  was  in  the  prime  of 
life,  and  the  other  had  not  reached  that  stage  or  had  passed  it, 
then  the  difference  in  their  years  is  an  important  factor  in  de- 
termining which  succumbed  first.601  It  must  constantly  be 
borne  in  mind,  however,  that  difference  in  sex  and  disparity  in 
age  give  rise  to  no  presumption  concerning  survivorship.  They 
are  merely  circumstances  from  which  an  inference  may  be 
drawn,  the  question  of  survivorship  being  in  all  cases  one  for 
the  jury. 

§  64.    Cause  of  death. 

Where  death  occurs  in  an  unknown  manner,  the  presump- 
tion is  that  it  did  not  come  about  by  self-destruction.602  This 
presumption  finds  frequent  application  in  cases  of  life  insur- 
ance, and  operates  in  favor  of  the  beneficiary,  and  against  the 
insurer.  Consequently,  if  the  insurer  seeks  to  avoid  payment 
of  the  policy  on  the  ground  of  suicide,  it  carries  the  burden 

6»9  See  Smith  v.  Groom,  7  Fla.  81;  Pell  v.  Ball,  Cheves  Eq.  (S.  C.)  99. 

eoo  Colvin  v.  Procurator-General,  1  Hagg.  Ecc.  92;  Coye  v.  Leach,  8 
Mete.  (Mass.)  371,  41  A.  D.  518,  520  (semble);  Moehring  v.  Mitchell, 
1  Barb.  Ch.  (N.  Y.)  264  (semble). 

eoi  Coye  v.  Leach,  8  Mete.  (Mass.)  371,  41  A.  D.  518  (semble). 

602  This  presumption  should  not  be  given  the  jury  in  a  trial  for 
murder,  where  the  evide'nce  justifies  either  of  two  theories  of  death, 
one  homicidal,  the  other  suicidal.  Persons  v.  State,  90  Tenn.  291;  Ma- 
sonic Life  Ass'n  of  Western  N.  Y.  v.  Pollard's  Guardian  (Ky.)  89  S.  W. 
219. 


266  LAW   OF   EVIDENCE.  g   54 

of  establishing  that  fact  as  an  affirmative  defense  to  an  action 
on  the  policy.603 

In  an  action  on  an  accident  policy,  the  burden  of  showing 
that  death  was  due  to  accident  rests  on  the  beneficiary.604  If, 
however,  the  beneficiary  adduces  evidence  that  death  was  due 
to  accidental  means,  the  burden  is  on  the  insurer  to  show  that 
it  arose  from  a  cause  excepted  by  the  contract.605 

BOS  stormont  v.  Waterloo  L.  &  C.  A.  Co.,  1  Post.  &  F.  22;  Wright  v. 
Sun  M.  L.  Ins.  Co.,  29  U.  C.  C.  P.  221;  Home  Ben.  Ass'n  v.  Sargent, 
142  U.  S.  691;  Dennis  v.  Union  M.  L.  Ins.  Co.,  84  Cal.  570;  Guardian 
M.  L.  Ins.  Co.  v.  Hogan,  80  111.  35;  Inghram  v.  Nat.  Union,  103  Iowa, 
395;  Mut.  L.  Ins.  Co.  v.  Wiswell,  56  Kan.  765;  Phillips  v.  La.  E.  L. 
Ins.  Co.,  26  La.  Ann.  404,  21  A.  R.  549;  John  Hancock  M.  L.  Ins.  Co. 
v.  Moore,  34  Mich.  41;  Goldschmidt  v.  Mut.  L.  Ins.  Co.,  102  N.  Y.  486; 
Cox  v.  Royal  Tribe,  42  Or.  365,  60  L.  R.  A.  620;  Continental  Ins.  Co. 
v.  Delpeuch,  82  Pa.  225;  Walcott  v.  Metropolitan  L.  Ins.  Co.,  64  Vt.  221, 
33  A.  S.  R.  923;  Cronkhite  v.  Travelers'  Ins.  Co.,  75  Wis.  116,  17  A.  S. 
R.  184. 

If  it  appears  that  death  was  due  to  either  accident  or  suicide,  the 
presumption  is  against  suicide.  Standard  L.  &  A.  Ins.  Co.  v.  Thornton, 
100  Fed.  582;  Dennis  v.  Union  M.  L.  Ins.  Co.,  84  Cal.  570;  Games  v. 
Iowa  State  T.  M.  Ass'n,  106  Iowa,  281,  68  A.  S.  R.  306;  Boynton  v. 
Equitable  L.  A.  Co.,  105  La.  202,  52  L.  R.  A.  687;  Hale  v.  Life  Ind.  & 
Inv.  Co.,  61  Minn.  516,  52  A.  S.  R.  616;  Mallory  v.  Travelers'  Ins.  Co., 
47  N.  Y.  52,  7  A.  R.  410. 

In  case  of  death  by  violence,*  the  presumption  is  against  suicide. 
Leman  v.  Manhattan  L.  Ins.  Co.,  46  La.  Ann.  1189,  49  A.  S.  R.  348;  Ins. 
Co.  v.  Bennett,  90  Tenn.  256,  25  A.  S.  R.  685. 

GO*  Travelers'  Ins.  Co.  v.  McConkey,  127  U.  S.  661;  Mfrs.  A.  I.  Co. 
v.  Dorgan,  16  U.  S.  App.  290,  22  L.  R.  A.  620;  Games  v.  Iowa  State  T. 
M.  Ass'n,  106  Iowa,  281,  68  A.  S.  R.  306;  American  Ace.  Co.  v.  Reigart, 
94  Ky.  547,  42  A.  S.  R.  374. 

As  to  sufficiency  of  evidence  to  show  accidental  death  by  drowning, 
see  Trew  v.  Ry.  Pass.  Assur.  Co.,  6  Hurl.  &  N.  839,  30  Law  J.  Exch. 
317;  Reynolds  v.  Ace.  Ins.  Co.,  22  Law  T.  (N.  S.)  820,  18  Wkly.  Rep. 
1141;  Mfrs.  A.  I.  Co.  v.  Dorgan,  16  U.  S.  App.  290,  22  L.  R.  A.  620. 

eo5  Games  v.  Iowa  State  T.  M.  Ass'n,  106  Iowa,  281,  68  A.  S.  R.  306; 
Smith  v.  Aetna  L.  Ins.  Co.,  115  Iowa,  217,  91  A.  S.  R.  153;  Anthony  v. 
Mercantile  M.  A.  Ass'n,  162  Mass.  354,  44  A.  S.  R.  367;  Hess  v.  Pre- 


§  65  NEGLIGENCE.  267 

These  presumptions  are  not  conclusive,  and  evidence  is  ac- 
cordingly admissible  to  rebut  them.606  In  order  to  overcome, 
by  circumstantial  evidence,  the  presumption  against  death  by 
suicide,  the  evidence  must  not  only  point  to  and  be  consistent 
with  the  theory  of  suicide,  but  also  be  of  such  character  as  to 
exclude  with  reasonable  certainty  any  other  cause  of  death.607 

P.  NEGLIGENCE. 

§  65.  The  presumption  of  innocence,  broadly  speaking,  ap- 
plies in  cases  where  negligence  is  in  issue.  Ordinarily,  negli- 
gence is  not  presumed.  On  the  contrary,  the  natural  presump- 
tion is  that  a  man  has  exercised  ordinary  care.  Accordingly, 
in  an  action  for  negligence,  the  plaintiff  bears  the  burden  of 
proof  in  the  sense  that  he  must  convince  the  jury  that  the  de- 
fendant did  not  use  due  care ;  and  at  the  beginning  of  the  trial 
the  plaintiff  bears  the  burden  of  proof  in  the  additional  sense 
that  he  must  adduce  evidence  in  support  of  his  complaint.608 

ferried  M.  M.  Ace.  Ass'n,  112  Mich.  196,  40  L.  R.  A.  444;  Meadows  v. 
Pac.  M.  L.  Ins.  Co.,  129  Mo.  76,  50  A.  S.  R.  427. 

In  case  of  death  by  violence,  the  presumption  is  against  murder  or 
suicide.  Ins.  Co.  v.  Bennett,  90  Tenn.  256,  25  A.  S.  R.  685.  See,  how- 
ever, Johns  v.  N.  W.  M.  Relief  Ass'n,  90  Wis.  332. 

In  case  of  death  by  violence,  the  deceased  is  presumed  to  have  ex- 
ercised ordinary  care.  Neill  v.  Travellers'  Ins.  Co.,  7  Ont.  App.  570; 
Baden f eld  v.  Mass.  M.  A.  Ass'n,  154  Mass.  77;  Freeman  v.  Travelers' 
Ins.  Co.,  144  Mass.  572;  Meadows  v.  Pac.  M.  L.  Ins.  Co.,  129  Mo.  76,  50 
A.  S.  R,  427;  Cronkhite  v.  Travelers'  Ins.  Co.,  75  Wis.  116,  17  A.  S.  R. 
184. 

eo6  ins.  Co.  v.  Bennett,  90  Tenn.  256,  25  A.  S.  R.  685;  Johns  v.  N.  W. 
M.  Relief  Ass'n,  90  Wis.  332. 

607  Leman  v.  Manhattan  L.  Ins.  Co.,  46  La.  Ann.  1189,  49  A.  S.  R.  348; 
Phillips  v.  La.  E.  L.  Ins.  Co.,  26  La.  Ann.  404,  21  A.  R.  549. 

eas  Brady  v.  C.  &  G.  W.  R.  Co.,  114  Fed.  100,  57  L.  R.  A.  712,  716; 
Birmingham  U.  R.  Co.  v.  Hale,  90  Ala.  8,  24  A.  S.  R.  748;  Cleveland, 
C.,  C.  &  St.  L.  R.  Co.  v.  Huddleston,  21  Ind.  App.  621,  69  A.  S.  R.  385; 
Sav.  Bank  v.  Caperton,  87  Ky.  306,  12  A.  S.  R.  488;  Clements  v. 
La.  Elec.  Light  Co.,  44  La.  Ann.  692,  32  A.  S.  R.  348;  Freeh  v.  P.,  W. 


268  LAW   OF   EVIDENCE.  £   66 

§  66.    Res  ipsa  loquitur. 

The  mere  fact  that  a  man's  person  or  property  is  involved 
in  an  accident  does  not  subject  him  to  liability  to  others  who 
suffer  injury  in  consequence.  To  charge  him,  it  must  appear 
that  he  was  guilty  of  some  wrongful  act  or  omission  contribut- 
ing to  the  accident.  If,  therefore,  it  is  alleged  that  he  was 
negligent,  the  burden  of  showing  negligence  rests  on  the  plain- 
tiff; and  this  burden  the  plaintiff  does  not  discharge,  and  so 
entitle  himself  to  a  recovery,  unless  he  shows,  the  cause  of  the 
accident  and  connects  the  defendant  with  it,  and  shows  that 
it  occurred  through  the  defendant's  neglect  to  use  due  care.60' 

&  B.  R.  Co.,  39  Md.  574;  Catron  v.  Nichols,  81  Mo.  80,  51  A.  R.  222; 
Searles  v.  Manhattan  R.  Co.,  101  N.  Y.  661;  Cosulich  v.  Standard  Oil 
Co.,  122  N.  Y.  118,  19  A.  S.  R.  475;  Cleveland  T.  &  V.  R.  Co.  v.  Marsh, 
63  Ohio  St.  236,  52  L.  R.  A.  142;  Pawling  v.  Hoskins,  132  Pa.  617,  19 
A.  S.  R.  617;  Wallace  v.  Lincoln  Sav.  Bank,  89  Tenn.  630,  24  A.  S.  R. 
625;  Chesapeake  &  O.  R.  Co.  v.  Lee,  84  Va.  642;  Gibson  v.  Huntington, 
38  W.  Va.  177,  45  A.  S.  R.  853;  6  Current  Law,  771. 

An  administrator  suing  for  death  by  wrongful  act  bears  the  burden 
of  proof,  the  same  as  if  the  decedent  had  survived  and  sued  for  per- 
sonal injuries.  Jones  v.  Mfg.  &  Inv.  Co.,  92  Me.  565,  69  A.  S.  R.  535; 
State  v.  Housekeeper,  70  Md.  162,  2  L.  R.  A.  587. 

A  client  who  sues  his  attorney  for  negligence  bears  the  burden  of 
proof.  Pennington  Exrs.  v.  Yell,  11  Ark.  212,  52  A.  D.  262. 

The  burden  of  proof,  in  the  sense  of  burden  of  persuading  the  jury 
of  the  existence  of  the  facts  on  which  the  right  of  action  depends,  un- 
like the  burden  of  adducing  evidence,  never  shifts,  but  rests  on  the 
plaintiff  throughout  the  trial.  Dowell  v.  Guthrie,  99  Mo.  653,  17  A. 
S.  R.  598.  See  §§  2,  4(b),  supra. 

GOO  East  Tenn.,  V.  &  G.  R.  Co.  v.  Stewart,  81  Tenn.  432;  Downey  v. 
Gemini  Min.  Co.,  24  Utah,  431,  91  A.  S.  R.  798. 

Accumulation  of  gas.    Curran  v.  Warren  C.  &  M.  Co.,  36  N.  Y.  153. 

Breaking  apart  of  train.     Murray  v.  D.  &  R.  G.  R.  Co.,  11  Colo.  124. 

Elevator  accident.  Lennon  v.  Rawitzer,  57  Conn.  583;  Gibson  v.  In- 
ternational Trust  Co.,  177  Mass.  100,  52  L.  R.  A.  928;  Specs  v.  Boggs, 
193  Pa.  112,  52  L.  R.  A.  933. 

Explosion.     Nitro-Glycerine  Case,  15  Wall.  (U.  S.)  524,  537. 

Falling  object.     Case  v.  C..  R.  I.  &  P.  R.  Co.,  64  Iowa,  762;  Kendall 


§  66  NEGLIGENCE.  269 

If,  however,  the  thing  that  causes  the  injury  is  under  the  ex- 
clusive control  of  the  defendant  or  his  servants,  and  the  acci- 
dent is  of  such  a  nature  that  it  would  not  have  happened  in 
the  ordinary  course  of  events  if  the  defendant  had  been  in 
the  exercise  of  due  care,  the  mere  fact  of  its  occurrence  gives 
rise  to  a  presumption  of  negligence,  and  the  burden  of  adducing 
evidence  of  exculpatory  facts  is  cast  on  the  defendant.610  This 
principle  is  expressed  in  the  phrase,  "res  ipsa  loquitur,"  and  it 
is  constantly  applied  in  negligence  cases.  The  doctrine  of  some 
courts  is  that,  excepting  where  a  contractual  relation  exists 
between  the  parties,  as  in  the  case  of  carriers,  for  example,611 

v.  Boston,  118  Mass.  234,  19  A.  R.  446;  Huey  v.  Gahlenbeck,  121  Pa. 
238,  6  A.  S.  R.  790. 

Fire.  The  Buckeye,  7  Biss.  23,  Fed.  Cas.  No.  2,084;  Weeks  v.  Mc- 
Nulty,  101  Tenn.  495,  70  A.  S.  R.  693. 

Low-hanging  telegraph  wire.  Wabash,  St.  L.  &  P.  R.  Co.  v.  Locke, 
1LJ  Ind.  404,  2  A.  S.  R.  193. 

Pin  thrown  by  locomotive.  Cleveland,  C.,  C.  &  St.  L.  R.  Co.  v. 
Berry,  152  Ind.  607,  46  L.  R.  A.  33. 

Poisonous  food.     Shelter  v.  Willoughby,  163  111.  518,  34  L.  R.  A.  464. 

Runaway.  O'Brien  v.  Miller,  60  Conn.  214,  25  A.  S.  R.  320;  Hart  v. 
Wash.  Park  Club,  157  111.  9,  48  A.  S.  R.  298;  Creamer  v.  Mcllvain,  89 
Md.  343,  45  L.  R.  A.  531. 

Switching  of  street  car  against  pedestrian.  Donovan  v.  Hartford 
St.  R.  Co.,  65  Gonn.  201,  29  L.  R.  A.  297. 

Tunnel  accident  on  mimic  railroad.  Benedick  v.  Potts,  88  Md.  52,  41 
L.  R.  A.  478. 

eio  Inland  &  S.  Coasting  Co.  v.  Tolson,  139  U.  S.  551;  St.  Louis,  I.  M. 
&  S.  R.  Co.  v.  Taylor,  57  Ark.  136;  Hart  v.  Wash.  Park  Club,  157  111. 
9,  48  A.  S.  R.  298  (semble) ;  Mulcairns  v.  Janesville,  67  Wis.  24;  Cum- 
mings  v.  Nat.  Furnace  Co.,  60  Wis.  603;  Carroll  v.  C.,  B.  &  N.  R.  Co., 
99  Wis.  399,  67  A.  S.  R.  872. 

Collision  on  highway.  Riepe  v.  Elting,  89  Iowa,  82,  48  A.  S.  R.  356; 
Meyers  v.  Hinds,  110  Mich.  300,  64  A.  S.  R.  345. 

Collision  of  vessels.  Bigelow  v.  Nickerson,  70  Fed.  113,  30  L.  R.  A. 
336. 

Fire.  Moore  v.  Parker,  91  N.  C.  275;  Shafer  v.  Laccck,  168  Pa.  497, 
29  L.  R.  A.  254.  Fire  set  by  locomotive,  see  page  274,  infra. 

on  See  §  69,  ir.fra. 


270  LAW   OF   EVIDENCE.  §  66a 

negligence  will  not  be  presumed  from  the  happening  of  the 
accident  and  a  consequent  injury,  but  the  plaintiff  must  show 
either  actual  negligence  or  conditions  which  are  so  obviously 
dangerous  as  to  admit  of  no  inference  other  than  that  of  negli- 
gence.612 This  view  does  not  generally  prevail,  however,  as 
may  be  seen  by  the  following  illustrations  'of  the  rule. 

(a)  Electric  wires.  Persons  licensed  to  maintain  overhead 
wires  in  public  places  for  the  transmission  'of  electricity  for 
power,  illumination,  or  other  purposes,  are  bound  to  use  a  high 
degree  of  care  for  the  protection  of  the  public ;  and  if,  by  rea- 
son of  imperfect  insulation  or  derangement  of  the  wires,  any 
one  is  injured  in  person  or  in  property  through  contact  there- 
with, a  presumption  of  negligence  arises,  which  casts  on  the 
defendant  the  burden  of  showing  that  he  exercised  due  care.613 

612  Nitro-Glycerine  Case,  15  Wall.  (U.  S.)  524,  538  (semble) ;  Louis- 
ville &  N.  R.  Co.  v.  Allen's  Adm'r,  78  Ala.  494  (semble);  Howser  v.  C. 
&  P.  R.  Co.,  80  Md.  146,  151,  45  A.  S.  R.  332  (semble);  Phila.,  W.  & 
B.  R.  Co.  v.  Stebbing,  62  Md.  504;  Cosulich  v.  Standard  Oil  Co.,  122  N. 
Y.  118,  19  A.  S.  R.  475;  Stearns  v.  Ontario  Spinning  Co.,  184  Pa.  519, 
63  A.  S.  R.  807.  Contra,  Rose  v.  Stephens  &  C.  Transp.  Co.,  20  Blatchf. 
411,  11  Fed.  438;  Judson  v.  Giant  Powder  Co.,  107  Cal.  549,  48  A.  S.  R. 
146;  111.  Cent.  R.  Co.  v.  Phillips,  55  111.  195  (semble). 

In  Stearns  v.  Ontario  Spinning  Co.,  supra,  it  is  said  that  the  burden 
which  is  thrown  upon  the  defendant  in  this  latter  event  is  not  that  of 
satisfactorily  accounting  for  the  accident,  but  merely  that  of  showing 
that  he  used  due  care. 

eis  Denver  Consol.  Elec.  Co.  v.  Simpson,  21  Colo.  371,  31  L.  R.  A. 
566;  W.  U.  Tel.  Co.  v.  State,  82  Md.  293,  51  A.  S.  R.  464;  Brown  v. 
Edison  Elec.  Ilium.  Co.,  90  Md.  400,  46  L.  R.  A.  745;  Gannon  v.  Laclede 
Gas  Light  Co.,  145  Mo.  502,  43  L.  R.  A.  505;  Newark  Elec.  L.  &  P. 
Co.  v.  Ruddy,  62  N.  J.  Law,  505,  63  N.  J.  Law,  357,  57  L.  R.  A.  624; 
Suburban  Elec.  Co.  v.  Nugent,  58  N.  J.  Law,  658,  32  L.  R.  A.  700; 
Mitchell  v.  Raleigh  Elec.  Co.,  129  N.  C.  166;  Haynes  v.  Raleigh  Gas 
Co.,  114  N.  C.  203,  41  A.  S.  R.  786;  Boyd  v.  Portland  Gen.  Elec.  Co.,  40 
Or.  126,  57  L.  R.  A.  619;  Elec.  R.  Co.  v.  Shelton,  89  Tenn.  423,  24  A.  S. 
R.  614;  Snyder  v.  Wheeling  Elec.  Co.,  43  W.  Va.  661,  64  A.  S.  R.  922. 
And  see  Clements  v.  La.  Elec.  Light  Co.,  44  La.  Ann.  692,  32  A.  S.  R. 
348. 


§  66b  NEGLIGENCE.  271 

(b)  Falling  objects.  If  a  person  lawfully  on  a  highway  or 
passageway  is  injured  by  the  falling  of  an  object  from  an  ad- 
jacent building  or  structure  of  any  sort,  the  circumstances  of 
the  accident  give  rise  to  a  presumption  of  negligence  on  the 
part  of  the  person  in  immediate  charge  either  in  person  or  by 
agent."14 

Escape  of  electricity  from  car  rails.  Trenton  Pass.  R.  Co.  v.  Cooper, 
60  N.  J.  Law,  219,  38  L.  R.  A.  637. 

en  Kearney  v.  L.,  B.  &  S.  C.  R.  Co.,  L.  R.  5  Q.  B.  411;  "Scott  v.  Lon- 
don Dock  Co.,  34  Law  J.  Exch.  220,  3  Hurl.  &  C.  596;  Byrne  v.  Boadle, 
2  Hurl.  &  C.  722;  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Hopkins,  54  Ark.  209, 
12  L.  R.  A.  189;  Dixon  v.  Pluns,  98  Cal.  384,  35  A.  S.  R.  180;  Barnowski 
v/Helson,  89  Mich.  523,  15  L.  R.  A.  33;  Kaples  v.  Orth,  61  Wis.  531. 
See,  however,  Kendall  v.  Boston,  118  Mass.  234,  19  A.  R.  446;  Stearns 
v.  Ontario  Spinning  Co.,  184  Pa.  519,  63  A.  S.  R.  807. 

Fall  of  timber  from  flat  car.  Howser  v.  C.  &  P.  R.  Co.,  80  Md.  146, 
45  A.  S.Tl.  332. 

Fall  of  freight-car  door.  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Neely,  63  Ark. 
636,  37  L.  R.  A.  616.  Contra,  Case  v.  C.,  R.  I.  &  P.  R.  Co.,  64  Iowa,  762. 

Fall  of  keg  on  shipboard.  Watts  v.  Jensen,  56  U.  S.  App.  619,  86 
Fed.  658,  46  L.  R.  A.  58. 

Fan  of  electric  or  elevated  railroad  fixture.  Uggla  v.  West  End  St. 
R.  Co.,  160  Mass.  351,  39  A.  S.  R.  481;  Volkmar  v.  Manhattan  R.  Co., 
134  N.  Y.  418,  30  A.  S.  R.  678. 

Fall  of  car  window.  Carroll  v.  C.,  B.  &  N.  R.  Co.,  99  Wis.  399,  67  A, 
S.  R.  872. 

Fall  of  cistern  wall.    Mulcairns  v.  Janesville,  67  Wis.  24. 

The  presumption  arises,  also,  against  the  owner  of  a  ruinous  build- 
ing, a  part  of  which  falls  on  a  person  on  the  adjacent  highway. 
Ryder  v.  Kinsey,  62  Minn.  85,  34  L.  R.  A.  557;  Mullen  v.  St.  John,  57 
N.  Y.  567,  15  A.  R.  530. 

The  fact  that  a  customer  in  a  warehouse  is  injured  hy  a  falling 
object  does  not  raise  a  presumption  of  negligence  on  the  part  of  the 
warehouseman  unless  the  object  is  identified  as  having  been  within  his 
control,  or  he  is  in  some  way  connected  with  the  accident.  Huey  v. 
Gahlenbeck,  121  Pa.  238,  6  A.  S.  R.  790,  limiting  Lake  Shore  &  M.  S.  R. 
Co.  v.  Rosenzweig,  113  Pa.  519. 

If  a  building  from  which  a  brick  falls  Is  in  the  hands  of  several 
Independent  contractors,  whose  employes  are  at  work  thereon  at  the 
same  time,  the  burden  of  showing  that  the  employe  of  any  particular 


272  LAW   OF   EVIDENCE.  g   66(1 

(c)  Explosions.     In  some  states  an  explosion  itself  furnishes 
prima  facie  evidence  of  negligence  on  the  part  of  the  person 
in  charge  either  in  person  or  by  agent,  which  he  must  accord- 
ingly rebut  in  order  to  relieve  himself  from  liability.615 

(d)  Railroad  accidents.     The  fact  that  a  traveler  on  the 
highway  is  killed  or  injured  at  a  railroad  crossing  does  not 
give  rise  to  a  presumption  of  negligence  on  the  part  of  the 
company  operating  the  train;  and,  in  an  action  for  the  death 
or  the  injuries,  the  burden  of  showing  negligence  rests,  there- 
fore, on  the  plaintiff.616 

contractor  caused  the  brick  to  fall  rests  on  the  plaintiff,  in  an  action 
for  personal  injuries.  Wolf  v.  Downey,  164  N.  Y.  30,  51  L.  R.  A.  241. 

615  Boiler.  Rose  v.  Stephens  &  C.  Transp.  Co.,  20  Blatchf.  411,  11  Fed. 
438;  Grimsley  v.  Hankins,  46  Fed.  400;  111.  Cent.  R.  Co.  v.  Phillips,  55 
111.  194;  Fay  v.  Davidson,  13  Minn.  523;  Beall  v.  Seattle,  28  Wash.  593, 
61  L.  R.  A.  583.  See  111.  Cent.  R.  Co.  v.  Houck,  72  111.  285.  Contra, 
Huff  v.  Austin,  46  Ohio  St.  386,  15  A.  S.  R.  613;  Young  v.  Bransford, 
12  Lea  (Tenn.)  232;  Veith  v.  Salt  Co.,  51  W.  Va.  96,  57  L.  R.  A.  410. 
And  see  Louisville  ft  N.  R.  Co.  v.  Allen's  Adm'r,  78  Ala.  494. 

Dynamite,  gunpowder  or  nitroglycerine.  Judson  v.  Giant  Powder 
Co.,  107  Cal.  549,  48  A.  S.  R.  146.  Contra,  Nitro-Glycerine  Case,  15 
Wall.  (U.  S.)  524;  Kinney  v.  Koopman,  116  Ala.  310,  67  A.  S.  R.  119; 
Walker  v.  C.,  R.  I.  &  P.  R.  Co.,  71  Iowa,  658. 

In  New  York  it  has  been  held  that  no  presumption  of  negligence 
arises  from  the  explosion  of  an  oil  tank.  Cosulich  v.  Standard  Oil 
Co.,  122  N.  Y.  118,  19  A.  S.  R.  475. 

Presumption  of  negligence  arising  against  carriers  of  passengers 
from  explosion,  see  note  670,  infra. 

6ieWakelin  v.  L.  &  S.  W.  R.  Co.,  12  App.  Cas.  41;  Terre  Haute  &  I. 
R.  Co.  v.  Clem,  123  Ind.  15,  18  A.  S.  R.  303;  Cent.  Pass.  R.  Co.  v.  Kuhn, 
86  Ky.  578,  9  A.  S.  R.  309;  Deikman  v.  Morgan's  L.  &  T.  R.  &  S.  S. 
Co.,  40  La.  Ann.  787;  Murray  v.  Mo.  Pac.  R.  Co.,  101  Mo.  236,  20  A.  S. 
R.  601;  Pa.  R.  Co.  v.  Middleton,  57  N.  J.  Law,  154,  51  A.  S.  R.  597;  Phila. 
&  R.  R.  Co.  v.  Boyer,  97  Pa.  91.  And  see  State  v.  Phila,,  W.  &  B.  R. 
Co.,  60  Md.  555;  Phila.,  W.  &  B.  R.  Co.  v.  Stebbing,  62  Md.  504;  An- 
napolis &  B.  S.  L.  R.  Co.  v.  Pumphrey,  72  Md.  82;  Yarnell  v.  Kan.  City, 
Ft.  S.  &  M.  R.  Co.,  113  Mo.  570,  18  L.  R.  A.  599. 

The  same  is  true  where  a  train  kills  or  injures  a  trespasser  on  the 
track.  The  burden  of  proof  rests  on  the  plaintiff.  Price  v.  Phila.,  W. 
&  B.  R.  Co.,  84  Md.  506,  36  L.  R.  A.  213:  Herring  v.  W.  &  R.  R.  Co., 


§  66d  NEGLIGENCE.  273 

As  to  whether,  in  an  action  against  a  railroad  company  for 
killing  or  injuring  live  stock  on  the  track,  the  plaintiff  makes 
a  prima  facie  case  of  negligence  on  the  part  of  the  defendant 
by  showing  the  accident,  and  thereby  shifts  the  burden  of  ad- 
ducing evidence  of  due  care  to  the  defendant,  the  cases  are  in 
conflict.  In  many  cases  it  is  held  that  the  place  and  circum- 
stance of  the  accident  may  found  a  presumption  of  negligence 
on  the  part  of  the  company,617  while  in  other  cases  the  same 
or  different  facts  are  deemed  insufficient  for  that  purpose.618 

32  N.  C.  (10  Ired.)  402;  Ward  v.  Southern  Pac.  Co.,  25  Or.  433,  23  L. 
R.  A.  715. 

It  is  provided  otherwise  by  statute  in  some  states.  Southwestern 
R.  Co.  v.  Singleton,  67  Ga.  306;  Vicksburg  &  M.  R.  Co.  v.  Phillips,  64 
Miss.  693. 

A  presumption  of  negligence  arises  from  the  blowing  of  a  locomotive 
whistle  loudly  and  repeatedly  as  it  passes  under  a  public  bridge.  Mit- 
chell v.  N.,  C.  &  St.  L.  R.  Co.,  100  Tenn.  329,  40  L.  R.  A.  426. 

«"  East  Tenn.,  V.  &  G.  R.  Co.  v.  Bayliss,  74  Ala.  150;  'Little  Rock 
&  F.  S.  R.  Co.  v.  Finley,  37  Ark.  562;  Little  Rock  &  F.  S.  R.  Co.  v. 
Jones,  41  Ark.  157;  McCoy  v.  Cal.  Pac.  R.  Co.,  40  Cal.  532,  6  A.  R.  623; 
Woolfolk  v.  Macon  &  A.  R.  Co.,  56  Ga.  457;  Savannah,  F.  &  W.  R.  v. 
Gray,  77  Ga.  440  (semble) ;  Union  Pac.  R.  Co.  v.  High,  14  Neb.  14; 
Walsh  v.  Va.  &  T.  R.  Co.,  8  Nev.  110;  White  v.  Concord  R.,  30  N.  H. 
188;  Smith  v.  Eastern  R.,  35  N.  H.  356;  Mack  v.  S.  B.  R.  Co.,  52  S.  C. 
323,  68  A.  S.  R.  913;  Jones  v.  C.  &  G.  R.  Co.,  20  S.  C.  249;  Murray  v. 
S.  C.  R.  Co.,  10  Rich.  Law  (S.  C.)  227,  70  A.  D.  219;  Banner  v.  S.  C.  R. 
Co.,  4  Rich.  Law  (S.  C.)  329,  55  A.  D.  678;  International  &  G.  N.  R.  Co. 
v.  Cocke,  64  Tex.  151. 

ei8  Savannah,  F.  &  W.  R.  Co.  v.  Geiger,  21  Fla.  669,  58  A.  R.  697; 
Chicago  &  M.  R.  Co.  v.  Patchin,  16  111.  198,  61  A.  D.  65;  Indianapolis 
&  C.  R.  Co.  v.  Means,  14  Ind.  30;  Schneir  v.  C.,  R.  I.  &  P.  R.  Co.,  40 
Iowa,  337;  Locke  v.  First  Div.  of  St.  P.  &  P.  R.  Co.,  15  Minn.  350; 
Mobile  &  O.  R.  Co.  v.  Hudson,  50  Miss.  572;  Brown  v.  H.  &  St.  J.  R.  Co., 

33  Mo.  309;  Walsh  v.  Va.  &  T.  R.  Co.,  8  Nev.  110;  Scott  v.  W.  &  R.  R. 
Co.,  49  N.  C.  (4  Jones)  432;  Home  v.  M.  &  O.  R.  Co.,  1  Cold.  (Tenn.) 
74;  International  &  G.  N.  R.  Co.  v.  Cocke,  64  Tex.  151;  Bethje  v.  H.  & 
C.  T.  R.  Co.,  26  Tex.  604;  Lyndsay  v.  Conn.  &  P.  R.  R.  Co.,  27  Vt.  643; 
Orange,  A.  &  M.  R.  Co.  v.  Miles,  76  Va.  773;  Galpin  v.  C.  &  N.  W.  R.  Co., 
19  Wis.  604. 

Hammon,  Ev. — 18. 


274  LAW   OF   EVIDENCE.  g   g6d 

The  conflict  of  authority  results,  for  the  most  part,  from  differ- 
ences in  the  statutory  regulations  prevailing  in  the  various 
states  concerning  the  duty  of  railroad  companies  to  fence  their 
tracks. 

In  an  action  against  a  railroad  company  for  negligence  in 
setting  a  fire  by  sparks  from  a  locomotive,  the  burden  of  proof 
rests  on  the  plaintiff,  and  he  must  accordingly  show  that  the 
fire  was  set  through  the  defendant's  negligence,  and  that  he 
suffered  damage  in  consequence.619  If  he  adduces  evidence 
tending  to  show  that  the  fire  was  caused  by  sparks  from  a  loco- 
motive, however,  a  presumption  of  negligence  arises.  He  there- 
by makes  a  prima  facie  case  against  the  defendant,  which 
shifts  upon  it  the  burden  'of  adducing  evidence  tending  to 
show  that  the  engine  in  question  was  properly  constructed, 
equipped,  and  operated.620  When  the  defendant  has  done  this, 

BIO  Louisville  &  N.  R.  Co.  v.  Marbury  Lumber  Co.,  125  Ala.  237,  50 
L.  R.  A.  620,  624;  Jacksonville,  T.  &  K.  W.  R.  Co.  v.  Peninsular  L.,  T. 
&  M.  Co.,  27  Fla.  1,  157,  17  L.  R.  A.  33,  65;  Atchison,  T.  &  S.  F.  R.  Co. 
v.  Stanford,  12  Kan.  354,  15  A.  R.  362,  365;  Laird  v.  Railroad,  62  N.  H. 
254,  13  A.  S.  R.  564,  568  (semble) ;  Field  v.  N.  Y.  Cent.  R.,  32  N.  Y. 
339,  345  (semble) ;  Henderson  v.  Phila.  &  R.  R.  Co.,  144  Pa.  461,  27 
A.  S.  R.  652;  Atkinson  v.  Goodrich  Transp.  Co.,  69  Wis.  5. 

If  it  appears  that  a  locomotive  emitted  sparks  at  about  the  time  of 
the  fire  in  question,  and  there  is  no  other  cause  or  circumstance  of 
suspicion  concerning  the  origin  of  the  fire,  it  rests  on  the  company 
to  show  that  the  locomotive  did  not  set  the  fire.  Longabaugh  v.  Va. 
City  &  T.  R.  Co.,  9  Nev.  271. 

620  ENGLAND:  Piggot  v.  E.  C.  R.  Co.,  3  C.  B.  229,  3  Man.,  G.  &  S.  229, 
54  E.  C.  L.  228. 

UNITED  STATES:  McCullen  v.  C.  &  N.  W.  R.  Co.,  101  Fed.  66,  49  L. 
R.  A.  642;  Eddy  v.  Lafayette,  49  Fed.  807. 

ALABAMA:  Louisville  &  N.  R.  Co.  v.  Reese,  85  Ala.  497,  7  A.  S.  R. 
66;  Louisville  &  N.  R.  Co.  v.  Marbury  Lumber  Co.,  125  Ala.  237,  50 
L.  R.  A.  620. 

ILLINOIS:  Bass  v.  C.,  B.  &  Q.  R.  Co.,  28  111.  9,  81  A.  D.  254;  Pitts- 
burgh, C.  &  St.  L.  R.  Co.  v.  Campbell,  86  111.  443;  111.  Cent.  R.  Co.  v. 
Mills,  42  111.  407. 

MINNESOTA:     Woodson  v.  M.  &  St.  P.  R.  Co.,  21  Minn.  60. 


§  66d  NEGLIGENCE.  275 

it  thereby  makes  a  prima  facie  case  against  the  plaintiff,  and  he 
cannot  recover  unless  negligence  in  other  respects  is  shown.621 

MISSOURI:  Coates  v.  Mo.,  K.  &  T.  R.  Co.,  61  Mo.  38;  Clemens  v.  H. 
&  St.  J.  R.  Co.,  53  Mo.  366,  14  A.  R.  4f>0;  Wise  v.  Joplin  R.  Co.,  85  Mo. 
178. 

NEBRASKA:  Burlington  &  M.  R.  Co.  v.  Westover,  4  Neb.  268;  Union 
Pac.  R.  Co.  v.  Keller,  36  Neb.  189. 

OREGON:     Koontz  v.  O.  R.  &  N.  Co.,  20  Or.  3. 

SOUTH  DAKOTA:  White  v.  C.,  M.  &  St.  P.  R.  Co.,  1  S.  D.  326,  9  L.  R. 
A.  824. 

TENNESSEE:     Burke  v.  L.  &  N.  R.  Co.,  7  Heisk.  451,  19  A.  R.  618. 

TEXAS:  Gulf,  C.  &  S.  F.  R.  Co.  v.  Benson,  69  Tex.  407,  5  A.  S.  R. 
74;  Galveston,  H.  &  S.  A.  R.  Co.  v.  Home,  69  Tex.  643. 

UTAH:     Anderson  v.  W.  &  J.  V.  R.  Co.,  2  Utah,  518. 

VERMONT:     Cleaveland  v.  G.  T.  R.  Co.,  42  Vt.  449. 

WISCONSIN:  Spaulding  v.  C.  &  N.  W.  R.  Co.,  30  Wis.  110,  11  A.  R. 
550  (semble). 

And  see  Union  Pac.  R.  Co.  v.  De  Busk,  12  Colo.  294,  13  A.  S.  R.  221, 
225. 

Contra, 

UNITED  STATES:     Garrett  v.  So.  R.  Co.,  101  Fed.  102,  49  L.  R.  A.  646. 

DELAWARE:     /efferis  v.  Phila.,  W.  &  B.  R.  Co'.,  3  Houst.  447. 

INDIANA:     Indianapolis  &  C.  R.  Co.  v.  Paramore,  31  Ind.  143. 

IOWA:     Gandy  v.  C.  &  N.  W.  R.  Co.,  30  Iowa,  420. 

NEW  YORK:     Field  v.  N.  Y.  Cent.  R.,  32  N.  Y.  339,  349   (semble). 

OHIO:     Ruffner  v.  C.,  H.  &  D.  R.  Co.,  34  Ohio  St.  9C. 

PENNSYLVANIA:  Henderson  v.  Phila.  &  R.  R.  Co.,  144  Pa.  461,  27  A. 
S.  R.  652. 

VIRGINIA:     Bernard  v.  R.,  F.  &  P.  R.  Co.,  85  Va.  792,  17  A.  S.  R.  103. 

And  see  Montgomery  v.  Muskegon  B.  Co.,  88  Mich.  633,  26  A.  S.  R. 
SOS;  Atkinson  v.  Goodrich  Transp.  Co.,  69  Wis.  5. 

The  matter  is  governed  by  statute  in  some  states.  Small  v.  C.,  R. 
I.  &  P.  R.  Co.,  50  Iowa,  338;  Green  Ridge  R.  Co.  v.  Brinkman,  64  Md. 
52,  54  A.  R.  755;  Bowen  v.  St.  P.,  M.  &  M.  R.  Co.,  36  Minn.  522,  523; 
Louisville,  N.  O.  &  T.  R.  Co.  v.  N.,  J.  &  C.  R.  Co.,  67  Miss.  399. 

Evidence  that  the  fire  was  communicated  by  sparks  from  the  de- 
fendant's engine,  if  accompanied  by  evidence  that  an  engine,  properly 
constructed  and  managed,  does  not  occasion  fires,  makes  a  prima  facie 
case  of  negligence  against  the  defendant.  Judson  v.  Giant  Powder  Co., 
107  Cal.  549,  560,  48  A.  S.  R.  146,  153  (semble);  Atchison,  T.  &  S.  F.  R. 
Co.  v.  Stanford,  12  Kan.  354,  15  A.  R.  362;  Field  v.  N.  Y.  Cent.  R.,  32  N. 
Y.  339. 


276  LAW   OF   EVIDENCE.  g   66f 

Railroad  accidents  resulting  in  injury  to  passengers  or  in 
their  death  oftentimes  give  rise  to  a  presumption  of  negligence 
on  the  part  of  the  carrier,  as  may  be  seen  in  another  connec- 
tion.622 

(e)  Master  and  servant.    Accidents  may  occur  in  the  course 
of  a  man's  employment  which  of  themselves  give  rise  to  a 
presumption  of  negligence  on  the  part  of  the  employer,623  sub- 
ject, however,  to  rules  of  law  otherwise  limiting  the  master's 
liability;624  as  where,  for  instance,  the  servant  had  assumed 
the  risk  of  the  accident,625  or  the  accident  was  due  to  the  neg- 
ligence of  a  fellow  servant.626 

(f)  Rebuttal  of  presumption.     The  presumption   of  negli- 
gence arising  from  the  happening  of  an  accident  is  not  con- 
clusive, and  evidence  is  accordingly  admissible  to  rebut  it.627 

The  emission  of  sparks  of  unusual  size  or  in  unusual  quantities  may 
raise  the  presumption  of  negligence.  Jacksonville,  T.  &  K.  W.  R.  Co. 
v.  Peninsular  L.,  T.  &  M.  Co.,  27  Fla.  1,  157,  17  L.  R.  A.  33,  65. 

621  Louisville   &   N.    R.    Co.    v.   Marbury   Lumber   Co.,    125   Ala.   237, 
60  L.  R.  A.  620,  624;  Meyer  v.  V.,  S.  &  P.  R.  Co.,  41  La.  Ann.  639,  17 
A.  S.  R.  408;  Coates  v.  Mo.,  K.  &  T.  R.  Co.,  61  Mo.  38;  Babcock  v.  F.  R. 
Co.,  140  N.  Y.  308  (semble) ;  Koontz  v.  O.  R.  &  N.  Co.,  20  Or.  3;  Gulf, 
H.  &  S.  A.  R.  Co.  v.  Benson,  69  Tex.  407,  5  A.  S.  R.  74;  Menominee  River 
S.  &  D.  Co.  v.  M.  &  N.  R.  Co.,  91  Wis.  447. 

622  Section  69,  infra. 

623  Watts  v.  Jensen,  56  U.  S.  App.  619,  86  Fed.  658,  46  L.  R.  A.  58; 
Grimsley  v.  Hankins,  46  Fed.  400;  Griffin  v.  B.  &  A.  R.  Co.,  148  Mass. 
143,  1  L.  R.  A.  698;  Tex.  &  N.  O.  R.  Co.  v.  Crowder,  63  Tex.  502,  504 
(semble). 

624  Wabash,  St.  L.  &  P.  R.  Co.  v.  Locke,  112  Ind.  404,  2  A.  S.  R.  193. 

625  Minty  v.  Union  Pac.  R.  Co.,  2  Idaho,  437,  4  L.  R.  A.  409;  Nason  v. 
West,  78  Me.  253;  Wormell  v.  Me.  Cent.  R.  Co.,  79  Me.  397,  1  A.  S.  R. 
321;  Mclsaac  v.  Northampton  E.  L.  Co.,  172  Mass.  89,  70  A.  S.  R.  244; 
Erie  &  W.  V.  R.  Co.  v.  Smith,  125  Pa.  259,  11  A.  S.  R.  895. 

626  Murray  v.  D.  &  R.  G.  R.  Co.,  11  Colo.  124;  Thyng  v.  Fitchburg  R. 
Co.,  156  Mass.  13,  32  A.  S.  R.  425;   Brennan  v.  Gordon,  3  N.  Y.  State 
Rep.  604. 

627  Grimsley  v.  Hankins,  46  Fed.  400;   Judson  v.  Giant  Powder  Co., 
107  Cal.  549,  555,  48  A.  S.  R.  146,  149;  Lennon  v.  Rawitzer,  57  Conn. 


g   67  NEGLIGENCE.  277 

And  it  does  not  arise  if,  in  proving  the  accident,  additional 
facts  appear  which  exonerate  the  defendant  from  blame.628 

§  67.    Contributory  negligence. 

In  an  action  for  negligence,  as  has  been  seen,  the  plaintiff, 
at  the  Beginning  of  the  trial,  is  obliged  to  'adduce  evidence 
tending  to  sustain  his  allegations.629  When  he  has  introduced 
evidence  tending  to  show  negligence  on  the  part  of  the  defend- 
ant, this  burden  of  adduction  is  discharged,  by  the  better  opin- 
ion, and,  if  the  defendant  offers  nothing,  the  plaintiff  is  en- 
titled to  go  to  the  jury.  Unless  his  evidence  shows  him  guilty 
of  contributory  negligence,  he  is  not  bound  to  show  affirma- 
tively, as  part  of  his  case,  a  want  of  negligence  on  his  own 
part.630  This  rule  is  applied  in  actions  for  death  or  injuries 
caused  by  the  failure  to  guard  dangerous  premises,631  or  by 

583;  Toledo,  W.  &  W.  R.  Co.  v.  Larmon,  67  111.  68;  Riepe  v.  Elting,  89 
Iowa,  82,  48  A.  S.  R.  356;  Uggla  v.  West  End  St.  R.  Co.,  160  Mass.  351, 
39  A.  S.  R.  481;  Snyder  v.  Wheeling  Elec.  Co.,  43  W.  Va.  661,  64  A.  S. 
R.  922. 

628  Gibson  v.  International  Trust  Co.,  177  Mass.  100,  52  L.  R.  A.  928; 
Ryder  v.  Kinsey,  62  Minn.  85,  34  L.  R.  A.  557;  Dowell  v.  Guthrie,  99 
Mo.  653,  17  A.  S.  R.  598;  Stearns  v.  Ontario  Spinning  Co.,  184  Pa.  519, 
63  A.  S.  R.  807;  6  Current  Law,  773. 

eao  See  §  65,  supra. 

esc  inland  &  S.  C.  Co.  v.  Tolson,  139  U.  S.  551;  Tex.  &  P.  R.  Co.  v. 
Volk,  151  U.  S.  73;  Ala.  G.  S.  R.  Co.  v.  Frazier,  93  Ala.  45,  30  A.  S.  R. 
28;  Freeh  v.  Phila.,  W.  &  B.  R.  Co.,  39  Md.  574;  Hocum  v.  Weitherick, 
22  Minn.  152;  Durrell  v.  Johnson,  31  Neb.  796,  801;  Suburban  Elec.  Co. 
v.  Nugent,  58  N.  J.  Law,  658,  32  L.  R.  A.  700;  Cable  v.  So.  R.  Co.,  122 
N.  C.  892  (statute) ;  Baker  v.  Westmoreland  &  C.  N.  G.  Co.,  157  Pa.  593. 

If,  in  an  action  on  an  accident  insurance  policy,  it  appears  that  the 
deceased  came  to  his  death  by  violence,  the  presumption  is  that  he 
exercised  ordinary  care  to  avoid  it.  Note  605,  supra. 

Aggravation  of  personal  injuries  through  negligence  of  the  plaintiff, 
if  urged  in  reduction  of  damages,  must  be  proved  by  the  defendant. 
Goshen  v.  England,  119  Ind.  368. 

88i  Sanders  v.  Reister,  1  Dak.  151;  Buesching  v.  St.  Louis  Gas  Light 
Co.,  73  Mo.  219,  39  A.  R.  503. 


278  LAW    OF   EVIDENCE.  §  67 

defects  in  sidewalks,  streets,  or  bridges;632  actions  by  passen- 
ger against  carrier;838  actions  against  railroad  or  street-car 
companies  for  damage  done  to  person  or  property  on  the  high- 
way;634 actions  against  railroad  companies  for  setting  fire  by 
sparks  from  locomotives  ;635  and  actions  against  masters  for  the 
death  of  or  injuries  to  servants.636  In  these  cases,  therefore, 

esa  Watertown  v.  Greaves,  50  C.  C.  A.  172,  112  Fed.  183,  56  L.  R.  A. 
865;  St.  Paul  v.  Kuby,  8  Minn.  154;  Mitchell  v.  Clinton,  99  Mo.  153; 
Omaha  v.  Ayer,  32  Neb.  375,  386;  Ouverson  v.  Graf  ton,  5  N.  D.  281; 
Hays  v.  Gallagher,  72  Pa.  13fi;  Stewart  v.  Nashville,  96  Tenn.  50;  Gor- 
don v.  Richmond,  83  Va.  436;  Welsh  v.  Argyle,  85  Wis.  307,  311;  Sey- 
mer  v.  Lake,  66  Wis.  651,  656;  Prideaux  v.  Mineral  Point,  43  Wis.  513, 
28  A.  R.  558;  Hoyt  v.  Hudson,  41  Wis.  105,  22  A.  R.  714;  Achtenhagen 
v/ Watertown,  18  Wis.  331,  86  A.  D.  769. 

ess  Wash.  &  G.  R.  Co.  v.  Harmon's  Adm'r,  147  U.  S.  571,  580;  Indian- 
apolis &  St.  L.  R.  Co.  v.  Horst,  93  U.  S.  291;  McQuilken  v.  Cent.  Pac. 
R.  Co.,  50  Cal.  7;  Thompson  v.  N.  M.  R.  Co.,  51  Mo.  190,  11  A.  R.  443; 
Wallace  v.  W.  N.  C.  R.  Co.,  104  N.  C.  442  (statute) ;  Dallas  &  W.  R.  Co. 
v.  Spicker,  61  Tex.  427  (semble) ;  Mo.  Pac.  R.  Co.  v.  Foreman,  73  Tex. 
311,  15  A.  S.  R.  785  (semble) ;  Waterman  v.  C.  &  A.  R.  Co.,  82  Wis.  613. 

63*  wash.  &  G.  R.  Co.  v.  Gladmon,  15  Wall.  (U.  S.)  401;  Southern 
Pac.  Co.  v.  Tomlinson  (Ariz.)  33  Pac.  710;  Robinson  v.  W.  P.  R.  Co., 
48  Cal.  409;  Baltimore  Traction  Co.  v.  Appel,  80  Md.  603,  604,  609; 
Mynning  v.  D.,  L.  &  N.  R.  Co.,  64  Mich.  93,  102,  8  A.  S.  R.  804  (sem- 
ble); Lillstrom  v.  N.  P.  R.  Co.,  53  Minn.  464,  20  L.  R.  A.  587,  590; 
O'Connor  v.  Mo.  Pac.  R.  Co.,  94  Mo.  150,  4  A.  S.  R.  364;  Murray  v.  Mo. 
Pac.  R.  Co.,  101  Mo.  236,  20  A.  S.  R.  601;  Weller  v.  C.,  M.  &  St.  P.  R. 
Co.,  164  Mo.  180,  86  A.  S.  R.  592;  Hudson  v.  W.  W.  R.  Co.,  101  Mo.  13; 
Pa.  R.  Co.  v.  Middleton,  57  N.  J.  Law,  154,  51  A.  S.  R.  597;  Johnson  v. 
H.  R.  R.  Co.,  20  N.  Y.  65,  75  A.  D.  375  (semble) ;  McBride  v.  N.  P.  R.  Co., 
19  Or.  64  (semble);  Pa.  R.  Co.  v.  Weber,  76  Pa.  157,  18  A.  R.  407; 
Weiss  v.  Pa.  R.  Co.,  79  Pa.  387;  Longenecker  v.  Pa.  R.  Co.,  105  Pa. 
328,  331;  Cleveland  &  P.  R.  Co.  v.  Rowan,  66  Pa.  393;  Bradwell  v.  P. 
&  W.  E.  Pass.  R.  Co.,  139  Pa.  404;  Gulf,  C.  •&  S.  F.  R.  Co.  v.  Shieder, 
88  Tex.  152,  28  L.  R.  A.  538;  Phillips  v.  M.  &  N.  R.  Co.,  77  Wis.  349, 
9  L.  R.  A.  521. 

ess  Louisville,  N.  O.  &  T.  R.  Co.  v.  N.,  J.  &  C.  R.  Co.,  67  Miss.  399; 
Snyder  v.  P.,  C.  &  St.  L.  R.  Co.,  11  W.  Va.  14. 

ese  Chicago  G.  W.  R.  Co.  v.  Price,  97  Fed.  423;  Louisville  &  N.  R.  Co. 
v.  Hall,  87  Ala.  708,  13  A.  S.  R.  84;  Ga.  Pac.  R.  Co.  v.  Davis,  92  Ala, 


§  67  NEGLIGENCE.  279 

by  the  weight  of  authority,  contributory  negligence  is  an  af- 
firmative defense  to  be  proved  by  the  defendant. 

In  some  states,  however,  a  contrary  view  is  taken,  and  a 
plaintiff  who  sues  for  negligence  is  required  to  adduce  evi- 
dence tending  to  show,  not  only  that  the  defendant  was  guilty 
of  negligence,  but  that  he  himself  was  free  from  it.637  This 

300,  25  A.  S.  R.  47;  Holt  v.  Whatley,  51  Ala.  569;  Little  Rock,  M.  R.  & 
T.  R.  Co.  v.  Leverett,  48  Ark.  333,  3  A.  S.  R.  230;  Little  Rock  &  Ft.  S. 
R.  Co.  v.  Eubanks,  48  Ark.  460,  3  A.  S.  R.  245;  Cent.  R.  &  B.  Co.  v. 
Kenney,  58  Ga.  485;  Cent.  R.  &  B.  Co.  v.  Small,  80  Ga.  519,  523;  St. 
Louis  &  S.  F.  R.  Co.  v.  Weaver,  35  Kan.  412;  Bogenschutz  v.  Smith,  84 
Ky.  330;  Thyng  v.  F.  R.  Co.,  156  Mass.  13,  32  A.  S.  R.  425  (semble); 
Rolseth  v.  Smith,  38  Minn.  14,  8  A.  S.  R.  637;  Young  v.  Shickle,  H.  & 
H.  Iron  Co.,  103  Mo.  324;  Flynn  v.  Kan.  City,  St.  J.  &  C.  B.  R.  Co.,  78 
Mo.  195;  Prosser  v.  Mont.  C.  R.  Co.,  17  Mont.  372,  30  L.  R.  A.  814; 
Union  S.  Y.  Co.  v.  Conoyer,  41  Neb.  617;  Owens  v.  R.  &  D.  R.  Co.,  88 
N.  C.  502,  507  (semble);  Brown  v.  Sullivan,  71  Tex.  470;  San  Antonio 
&  A.  Pass.  R.  Co.  v.  Bennett,  76  Tex.  151;  Northern  Pac.  R.  Co.  v. 
O'Brien,  1  Wash.  St.  599;  Comer  v.  Consol.  C.  &  M.  Co.,  34  W.  Va.  533; 
Flannegan  v.  C.  &  O.  R.  Co.,  40  W.  Va.  436,  52  A.  S.  R.  896. 

A  servant  suing  the  master  for  negligence  is  not  bound  to  show,  in 
the  first  instance,  a  want  of  negligence  on  the  part  of  a  fellow  servant. 
Lorimer  v.  St.  P.  City  R.  Co.,  48  Minn.  391;  Flannegan  v.  C.  &  O.  R. 
Co.,  40  W.  Va.  436,  52  A.  S.  R.  896;  Dugan  v.  C.,  St.  P.,  M.  &  O.  R.  Co., 
85  Wis.  609. 

637  North  Chicago  St.  R.  Co.  v.  Louis,  138  111.  9;  Lucas  v.  N.  B.  & 
T.  R.  Co.,  6  Gray  (Mass.)  64,  66  A.  D.  406;  Lee  v.  Troy  Citizens'  Gas 
Light  Co.,  98  N.  Y.  115. 

The  rule  in  these  states  is  sometimes  stated  in  the  qualified  form 
that,  where  the  action  of  both  parties  must  have  concurred  to  produce 
the  injury,  it  devolves  upon  the  plaintiff  to  show  that  he  was  not 
himself  guilty  of  contributory  negligence.  Clements  v.  La.  Elec.  Light 
Co.,  44  La.  Ann.  692,  32  A.  S.  R.  348;  Detroit  &  M.  R.  Co.  v.  Van 
Steinburg,  17  Mich.  99;  Bovee  v.  Danville,  53  Vt.  183.  And  it  seems 
to  be  the  rule  in  some  states  that  the  burden  of  proof  rests  on  the 
plaintiff  as  to  contributory  negligence,  but  that  the  burden  of  adducing 
evidence  of  due  care  on  his  part  is  satisfied  if  he  shows  negligence 
on  the  part  of  the  defendant  under  circumstances  which  cast  no  im- 
putation of  blame  on  the  plaintiff.  Mayo  v.  B.  &  M.  R.,  104  Mass.  137; 
Thyng  v.  F.  R.  Co.,  156  Mass.  13,  32  A.  S.  R.  425;  Teipel  v.  Hilsendegen, 


280  LAW    OF   EVIDENCE.  §   67 

view  is  taken  in  actions  for  death  or  injuries  caused  by  de- 
fects in  sidewalks,  streets,  or  bridges;638  actions  against  rail- 
road or  street-car  companies  for  damage  done  to  person  'or 
property  on  the  highway;639  actions  against  masters  for  death 
of  or  injuries  to  servants;6*0  and  actions  for  collision  between 
vehicles  or  vehicles  and  pedestrians.641  In  some  jurisdictions, 
therefore,  the  plaintiff  must  in  these  cases  show  an  absence 
of  contributory  negligence  as  part  of  his  affirmative  case. 
Whichever  may  be  the  better  rule,  it  is  undoubtedly  the  law 

44  Mich.  461;  Guggenheim  v.  L.  S.  &  M.  S.  R.  Co.,  66  Mich.  150,  159; 
Mynning  v.  D.,  L.  &  N.  R.  Co.,  64  Mich.  93,  8  A.  S.  R.  804;  Lyman 
v.  B.  &  M.  R.  Co.,  66  N.  H.  200,  11  L.  R.  A.  364;  Button  v.  H.  R.  R. 
Co.,  18  N.  Y.  248;  Johnson  v.  H.  R.  R.  Co.,  20  N.  Y.  65,  75  A.  D.  375. 

cssBartram  v.  Sharon,  71  Conn.  686,  71  A.  S.  R.  225;  Fox  v.  Glasten- 
bury,  29  Conn.  204  (semble) ;  Kepperly  v.  Ramsden,  83  111.  354;  Toledo, 
W.  &  W.  R.  Co.  v.  Brannagan,  75  Ind.  490;  Crafts  v.  Boston,  109  Mass. 
519;  Murphy  v.  Deane,  101  Mass.  455,  3  A.  R.  390;  Vicksburg  v.  Hen- 
nessy,  54  Miss.  391,  28  A.  R.  354,  356  (semble) ;  Bovee  v.  Danville,  53 
Vt.  183. 

639  ind.  B.  &  W.  R.  Co.  v.  Greene,  106  Ind.  279,  55  A.  R.  736;   Cin- 
cinnati, I.,  St.  L.  &  C.  R.  Co.  v.  Howard,  124  Ind.  280,  19  A.  S.  R.  96; 
Cincinnati,  H.  &  I.  R.  Co.  v.  Butler,  103  Ind.  31;  Evansville  St.  R.  Co. 
v.  Gentry,  147  Ind.  408,  62  A.  S.  R.  421;  Benton  v.  Cent.  R.,  42  Iowa, 
192   (semble);  Lesan  v.  Me.  Cent.  R.  Co.,  77  Me.  85;   Gaynor  v.  O.  C. 
&  N.  R.  Co.,  100  Mass.  208,  97  A.  D.  96  (semble) ;  Gahagan  v.  B.  &  L.  R. 
Co.,  1  Allen  (Mass.)  187,  79  A.  D.  724;  Detroit  &  M.  R.  Co.  v.  Van  Stein- 
burg,  17  Mich.  99;  Brickell  v.  N.  Y.  Cent.  &  H.  R.  R.  Co.,  120  N.  Y.  290, 
17  A.  S.  R.  648;  Wilcox  v.  R.,  W.  &  0.  R.  Co.,  39  N.  Y.  358,  100  A.  D. 
440;  Coughtry  v.  Willamette  St.  R.  Co.,  21  Or.  245   (semble). 

Indictment  for  death,  see  State  v.  Me.  Cent.  R.  Co.,  76  Me.  357,  49 
A.  R.  622.  Trespasser  on  track,  see  Blanchard  v.  L.  S.  &  M.  S.  R.  Co., 
126  111.  416,  9  A.  S.  R.  630. 

640  in.  Cent.  R.  Co.  v.  Houck,  72  111.  285;  Cincinnati,  H.  &  D.  R.  Co.  v. 
McMullen,  117  Ind.  439,  10  A.  S.  R.  67,  72;  Hawes  v.  B.,  C.  R.  &  N.  R. 
Co.,  64  Iowa,  315;  Wormell  v.  Me.  Cent.  R.  Co.,  79  Me.  397,  1  A.  S.  R. 
321;  McLane  v.  Perkins,  92  Me.  39,  43  L.  R.  A.  487;  Corcoran  v.  B.  & 
A.  R.  Co.,  133  Mass.  507. 

641  Lane  v.   Crombie,  12  Pick.    (Mass.)    176;    Parker  v.  Adams,  12 
Mete.  (Mass.)  415,  46  A.  D.  694;  Daniels  v.  Clegg,  28  Mich.  32. 


§  67  NEGLIGENCE.  281 

that,  if  the  plaintiff's  own  evidence  shows  him  prima  facie  to 
have  been  guilty  of  contributory  negligence,  he  rests  under  the 
necessity  of  showing,  not  only  negligence  on  the  part  of  the  de- 
fendant, but  want  of  negligence  on  his  own  part.  He  must 
dispel  the  prima  facie  case  which  his  own  evidence  makes 
against  him,  else  suffer  a  dismissal  or  nonsuit.642  If,  however, 
the  plaintiff's  own  evidence  does  not  thus  make  a  prima  facie 

642  ENGLAND:     Davey  v.  L.  &  S.  W.  R.  Co.,  12  Q.  B.  Div.  70. 
ALABAMA:     North  Birmingham  St.  R.  Co.  v.  Calderwood,  89  Ala.  247, 

18  A.  S.  R.  105;  Holt  v.  Whatley,  51  Ala.  569,  570. 

CALIFORNIA:  Robinson  v.  W.  P.  R.  Co.,  48  Cal.  409;  McQuilken  v. 
Cent.  Pac.  R.  Co.,  50  Cal.  7. 

GEORGIA:     Cent.  R.  &  B.  Co.  v.  Kenney,  58  Ga.  485. 

ILLINOIS:  Blanchard  v.  L.  S.  &  M.  S.  R.  Co.,  126  111.  416,  9  A.  S.  R. 
630. 

INDIANA:     Cincinnati,  I.,  St.  L.  &  C.  R.  Co.  v.  Howard,  124  Ind.  280, 

19  A.  S.  R.  96;  Engrer  v.  O.  &  M.  R.  Co.,  142  Ind.  618. 
LOUISIANA:     Ryan  v.  L.,  N.  O.  &  T.  R.  Co.,  44  La.  Ann.  806. 
MAINE:     State  v.  Me.  Cent.  R.  Co.,  76  Me.  357,  49  A.  R.  622. 
MARYLAND:     Phila.,  W.  &  B.  R.  Co.  v.  Stebbing,  62  Md.  504,  49  A.  R. 

628,  note. 

MASSACHUSETTS:  Gahagan  v.  B.  &  L.  R.  Co.,  1  Allen,  187,  79  A.  D. 
724. 

MINNESOTA:  Brown  v.  M.  &  St.  P.  R.  Co.,  22  Minn.  165;  Hocum  v. 
Weitherick,  22  Minn.  152. 

MISSOURI:     Hudson  v.  W.  W.  R.  Co.,  101  Mo.  13. 

NEBRASKA:     Durrell  v.  Johnson,  31  Neb.  796. 

NEW  YORK:  Tolman  v.  S.,  B.  &  N.  Y.  R.  Co.,  98  N.  Y.  198,  50  A.  R. 
649;  Brickell  v.  N.  Y.  C.  &  H.  R.  R.  Co.,  120  N.  Y.  290,  17  A.  S.  R.  648; 
Wendell  v.  N.  Y.  C.  &  H.  R.  R.  Co.,  91  N.  Y.  420. 

NORTH  CAROLINA:  .Owens  v.  R.  &  D.  R.  Co.,  88  N.  C.  502,  507  (sem- 
ble) ;  Wallace  v.  W.  N.  C.  R.  Co.,  104  N.  C.  442  (semble). 

OREGON:     Coughtry  v.  Willamette  St.  R.  Co.,  21  Or.  245. 

PENNSYLVANIA:  Cleveland  &  P.  R.  Co.  v.  Rowan,  66  Pa.  393;  Baker 
v.  W.  &  C.  N.  G.  Co.,  157  Pa.  593;  Schum  v.  Pa.  R.  Co.,  107  Pa.  8,  52 
A.  R.  468. 

TENNESSEE:  Stewart  v.  Nashville,  96  Tenn.  50;  Bamberger  v.  Citi- 
zens' St.  R.  Co..  95  Tenn.  18,  49  A.  S.  R.  909. 

TEXAS:  Gulf,  C.  &  S.  F.  R.  Co.  v.  Shieder,  88  Tex.  152,  28  L.  R.  A. 
638;  Brown  v.  Sullivan,  71  Tex.  470;  San  Antonio  &  A.  Pass.  R.  Co.  v. 


282  LAW    OF   EVIDENCE.  §   68a 

case  against  him,  and  yet  tends  to  show  contributory  negli- 
gence, then  the  burden  of  adducing  evidence  of  due  care  on 
his  part  is  not  shifted  to  him,  and  he  will  not  be  nonsuited  be- 
cause he  fails  to  go  forward  with  more  evidence  on  that  point, 
but  upon  such  evidence  the  question  of  contributory  negli- 
gence is  for  the  jury.643 

§  68.    Bailments. 

(a)  Bailees  in  general.  In  an  action  by  a  bailor  of  goods 
against  the  bailee,  the  burden  of  proof  rests  on  the  plaintiff 
in  the  sense  that  he  must  convince  the  jury  of  the  existence  of 
the  facts  on  which  his  right  of  action  depends ;  and  incidentally 
he  bears  at  the  beginning  of  the  trial  the  burden  of  proof  in 
the  additional  sense  that  he  must  adduce  evidence  tending  di- 
rectly or  indirectly  to  support  his  allegations.644  By  intro- 
ducing evidence  tending  to  show  a  default  in  delivering  the 
goods  on  demand  at  a  proper  time,  together  with  a  failure  to 

Bennett,  76  Tex.  151;  Mo.  Pac.  R.  Co.  v.  Foreman,  73  Tex.  311,  15  A.  S. 
R.  785. 

WEST  VIRGINIA:  Barrickman  v.  Marion  Oil  Co.,  45  W.  Va.  634,  44 
L.  R.  A.  92,  100. 

WISCONSIN:  Waterman  v.  C.  &  A.  R.  Co.,  82  Wis.  613;  Prideaux  v. 
Mineral  Point,  43  Wis.  513,  28  A.  R.  558;  Achtenhagen  v.  Watertown, 
18  Wis.  331,  86  A.  D.  769;  Milwaukee  &  C.  R.  Co.  v.  Hunter,  11  Wis.  160, 
78  A.  D.  699. 

And  see  Downey  v.  Gemini  Min.  Co.,  24  Utah,  431,  91  A.  S.  R.  798. 

643  BuVns  v.  C.,  M.  &  St.  P.  R.  Co.,  69  Iowa,  450,  58  A.  R.  227;  Teipel 
v.  Hilsendegen,  44  Mich.  461;  Hendrickson  v.  G.  N.  R.  Co.,  49  Minn. 
245,  32  A.  S.  R.  540;  Lyman  v.  B.  &  M.  R.  Co.,  66  N.  H.  200,  11  L.  R.  A. 
364,  366;  Johnson  v.  H.  R.  R.  Co.,  20  N.  Y.  65,  75  A.  D.  375;  Ouverson 
v.  Grafton,  5  N.  D.  281;  Prideaux  v.  Mineral  Point,  43  Wis.  513,  28  A. 
R.  558;  Hoyt  v.  Hudson,  41  Wis.  105,  22  A.  R.  714,  719. 

64*Higman  v.  Camody,  112  Ala.  257,  57  A.  S.  R.  33;  Buswell  v.  Fuller, 
89  Me.  600. 

Warehouseman.  Baltimore  &  O.  R.  Co.  v.  Schumacher,  29  Md.  168, 
96  A.  D.  510;  Gay  v.  Bates,  99  Mass.  263;  Lancaster  Mills  v.  Merchants' 
C.  P.  Co.,  89  Tenn.  1,  24  A.  S.  R.  586. 


§  68a  NEGLIGENCE.  283 

account  for  them,  the  bailor  discharges  the  burden  of  adducing 
evidence  which  rests  on  him  at  the  outset,  and  thereby  makes 
a  prima  facie  case  in  his  favor,  so  that  the  burden  of  adducing 
evidence  by  way  of  explanation  of  the  default  is  shifted  to 
the  bailee.645  It  is  sufficient  rebuttal  of  the  plaintiff's  prima 
facie  case  where  the  defendant  adduces  evidence  tending  to 
show  that  the  default  was  caused  by  the  loss  or  destruction  or 
theft  of  the  goods.  He  need  not  offer  evidence  in  addition 

6*5Higman  v.  Camody,  112  Ala.  257,  57  A.  S.  R.  33;  Mills  v.  Gilbreth, 
47  Me.  320,  74  A.  D.  487;  Woodruff  v.  Painter,  150  Pa.  91,  30  A.  S.  R.  786 
(semble). 

Boom  company.    Chesley  v.  Miss.  &  R.  R.  Boom  Co.,  39  Minn.  83. 

Borrower.    Prince  v.  Ala.  State  Fair,  106  Ala.  340,  28  L.  R.  A.  716. 

Private  carrier.  Verner  v.  Sweitzer,  32  Pa.  208;  Beckman  v.  Shouse, 
5  Rawle  (Pa.)  179,  28  A.  D.  653. 

Warehouseman.  Roche  v.  Fraser,  7  L.  C.  472;  Taussig  v.  Bode,  134 
Cal.  260,  54  L.  R.  A.  774;  Wilson  v.  So.  Pac.  R.  Co.,  62  Cal.  164;  Boies 
v.  H.  &  N.  H.  R.  Co.,  37  Conn.  272,  9  A.  R.  347;  Cumins  v.  Wood,  44  111. 
416,  92  A.  D.  189;  Cass  v.  B.  &  L.  R.  Co.,  14  Allen  (Mass.)  448;  Clark 
v.  Spence,  10  Watts  (Pa.)  335;  Lancaster  Mills  v.  Merchants'  C.  P.  Co., 
89  Tenn.  1,  24  A.  S.  R.  586. 

Banker,  pledgee,  or  depositary.  Merchants'  Nat.  Bank  .v.  Guilmartin, 
93  Ga.  503,  44  A.  S.  R.  182;  Merchants'  Nat.  Bank  v.  Carhart,  95  Ga. 
394,  51  A.  S.  R.  95;  Ouderkirk  v.  Cent.  Nat.  Bank,  119  N.  Y.  263; 
Isham  v.  Post,  141  N.  Y.  100,  38  A.  S.  R.  766;  First  Nat.  Bank  v.  Zent, 
39  Ohio  St.  105;  Safe  Deposit  Co.  v.  Pollock,  85  Pa.  391,  27  A.  R.  660. 

If  a  bank  pays  a  deposit  to  a  person  other  than  the  depositor,  except 
upon  his  order,  it  has  the  burden  of  showing,  not  only  that  the  de- 
positor did  not  own  the  fund,  but  also  that  the  payee  did  own  it.  Gan- 
ley  v.  Troy  City  Nat.  Bank.  98  N.  Y.  487;  Patterson  v.  Marine  Nat. 
Bank,  130  Pa.  419,  17  A.  S.  R.  778.  And  see  Wetherly  v.  Straus,  93  Cal. 
283.  If,  however,  a  deposit  is  made  by  an  agent,  it  is  presumed,  in 
favor  of  the  bank,  that  he  has  authority  to  withdraw  it.  Walker  v. 
Manhattan  Bank,  25  Fed.  247. 

In  an  action  by  a  depositor  against  the  bank  to  recover  the  amount 
paid  by  it  on  a  forged  check,  the  burden  is  on  the  bank  to  show  that 
it  sustained  injury  by  the  negligence  of  the  depositor,  if  it  defends  on 
that  ground.  Janin  v.  London  &  S.  F.  Bank,  92  Cal.  14,  27  A.  S.  R.  82; 
Critten  v.  Chemical  Nat.  Bank,  171  N.  Y.  219,  57  L.  R.  A.  529. 


284  LAW   OF   EVIDENCE.  §   gga 

to  show  that  the  loss,  destruction,  or  theft  did  not  occur  through 
his  negligence.  On  the  contrary,  the  presumption  is  that  he 
exercised  due  care,  and,  if  the  plaintiff  asserts  the  contrary, 
the  burden  is  on  him  to  show  it.646 

If  it  appears  that  the  bailee  returned  the  property  to  the 
bailor  in  a  damaged  condition,  ordinary  wear  and  tear  except- 
ed,647  then  the  burden  is  on  the  bailee  to  show  that  the  injury 
did  not  occur  through  his  negligence.648 

646Higman  v.  Camody,  112  Ala.  257,  57  A.  S.  R.  33;  Mills  v.  Gilbreth, 
47  Me.  320,  74  A.  D.  487;  Stewart  v.  Stone,  127  N.  Y.  500,  14  L.  R.  A. 
215;  Beckman  v.  Shouse,  5  Rawle  (Pa.)  179,  28  A.  D.  653. 

Bailee  with  option  to  buy.  Knights  v.  Piella,  111  Mich.  9,  66  A.  S.  R. 
375. 

Postmaster.    Raisler  v.  Oliver,  97  Ala.  710,  38  A.  S.  R.  213. 

Warehouseman.  Taussig  v.  Bode,  134  Gal.  260,  54  L.  R.  A.  774;  Wil- 
son v.  So.  Pac.  R.  Co.,  62  Cal.  164;  Denton  v.  C.,  R.  I.  &  P.  R.  Co.,  52 
Iowa,  161,  35  A.  R.  263;  Cass  v.  B.  &  L.  R.  Co.,  14  Allen  (Mass.)  448, 
452;  Lamb  v.  Western  R.  Corp.,  7  Allen  (Mass.)  98;  Claflin  v.  Meyer, 
75  N.  Y.  260,  31  A.  R.  467;  Schmidt  v.  Blood,  9  Wend.  (N.  Y.)  268,  24 
A.  D.  143;  Clark  v.  Spence,  10  Watts  (Pa.)  335;  Lancaster  Mills  v. 
Merchants'  C.  P.  Co.,  89  Tenn.  1,  24  A.  S.  R.  586. 

Depositary.  Wylie  v.  Northampton  Bank,  119  U.  S.  361.  If,  however, 
the  loss  of  a  special  deposit  occurs  through  the  negligence  or  dishon- 
esty of  an  employe  of  the  depositary,  the  burden  is  on  it  to  show  rea- 
sonable care  on  its  part  as  to  the  selection  and  retention  of  the  em- 
ploye. Merchants'  Nat.  Bank  v.  Carhart,  95  Ga.  394,  51  A.  S.  R.  95. 

In  some  states  the  rule  stated  in  the  text  does  not  prevail,  and  the 
burden  of  showing  want  of  negligence  rests  accordingly  on  the  bailee. 
Chicopee  Bank  v.  Phila.  Bank,  8  Wall.  (U.  S.)  641;  Wilson  v.  Cal.  C.  R. 
Co.,  94  Cal.  166,  17  L.  R.  A.  685  (semble);  Brown  v.  Waterman,  10 
Gush.  (Mass.)  117  (semble). 

047  Wintringham  v.  Hayes,  144  N.  Y.  1,  43  A.  S.  R.  725  (semble). 

Where  the  property  is  of  such  a  nature  that  the  bailee  is  not  abso- 
lutely bound  to  return  it  in  the  same  condition  as  it  was  in  when  he 
received  it,  the  fact  of  injury  does  not  throw  the  burden  of  adducing 
evidence  on  the  bailee.  Malaney  v.  Taft,  60  Vt.  571,  6  A.  S.  R.  135. 

648Higman  v.  Camody,  112  Ala.  257,  57  A.  S.  R.  33;  Funkhouser  v. 
Wagner,  62  111.  59;  Buswell  v.  Fuller,  89  Me.  600;  Wintringham  v. 
Hayes,  144  N.  Y.  1,  43  A.  S.  R.  725;  Collins  v.  Bennett,  46  N.  Y.  490; 
Logan  v.  Mathews,  6  Pa.  417. 


§  6Sb  NEGLIGENCE.  285 

(b)  Innkeepers.  The  rule  is  different  with  reference  to  inn- 
keepers. If  a  guest's  property  disappears  while  he  is  at  an 
hotel,  he  makes  a  prima  facie  case  against  the  landlord  by 
showing  the  loss,  and  the  landlord  is  thereupon  charged  with 
the  burden  of  adducing  evidence  tending  to  show  that  neither 
he  nor  his  servants  were  in  fault.649  And  the  same  rule  ap- 
plies where  the  property  of  the  guest  is  injured  or  destroyed 
while  in  the  landlord's  custody.650 

In  many  states  the  rule  of  liability  is  more  stringent  in  favor 
of  the  guest,  and  the  innkeeper  can  exonerate  himself  from 
liability  for  the  loss  or  injury  only  by  showing  that  it  occurred 
by  act  of  God  or  the  public  enemy  or  by  fault  of  the  guest 
himself  or  his  servants,  or  doubtless  by  restraint  of  law  or  by 
reason  of  some  inherent  defect  in  the  property  itself.  In  these 
jurisdictions  it  does  not  excuse  the  innkeeper  that  he  exer- 

Warehouseman.  Cumins  v.  Wood,  44  111.  416,  92  A.  D.  189.  If  it  ap- 
pears that  the  goods  were  damaged  by  the  fall  of  the  warehouse  wherein 
they  were  stored,  the  burden  of  showing  due  care  in  regard  to  inspect- 
ing the  condition  of  the  building  does  not  rest  on  the  warehouseman. 
On  tne  contrary,  the  burden  of  showing  negligence  in  this  respect  rests 
on  the  plaintiff.  Willett  v.  Rich,  142  Mass.  356,  56  A.  R.  684. 

To  recover  for  damage  to  goods  placed  in  cold  storage,  the  owner 
need  not  prove  more  than  that  the  goods,  when  delivered  to  the  ware- 
houseman, were,  according  to  the  usual  and  ordinary  test  of  commerce, 
sound.  He  need  not  show  that  the  goods  were  not  affected  by  insect 
life  when  stored,  or  that  a  process  of  deterioration  had  not  then  begun. 
Marks  v.  N.  O.  Cold  Storage  Co.,  107  La.  172,  90  A.  S.  R.  285. 

e*»Metcalf  v.  Hess,  14  111.  129;  Johnson  v.  Richardson,  17  111.  302,  63 
A.  D.  369;  Baker  v.'  Dessauer,  49  Ind.  28;  Kisten  v.  Hildebrand,  9  B. 
Mon.  (Ky.)  72,  48  A.  D.  416;  Wiser  v.  Chesley,  53  Mo.  547;  Newson  v. 
Axon,  1  McCord  (S.  C.)  509,  10  A.  D.  685;  Howth  v.  Franklin,  20  Tex. 
798,  73  A.  D.  218;  McDaniels  v.  Robinson,  26  Vt.  316,  62  A.  D.  574; 
Read  v.  Amidon,  41  Vt.  15,  98  A.  D.  560,  561;  Oriental  Hotel  Ass'n  v. 
Faust  (Tex.)  86  S.  W.  373. 

A  presumption  of  negligence  on  the  part  of  the  innkeeper  does  not 
arise  from  the  fact  that  a  fire  originates  in  the  premises  and  destroys 
the  life  of  a  guest.  Weeks  v.  McNulty,  101  Tenn.  495,  70  A.  S.  R.  693. 

050  Dawson  v.  Chamney,  5  Q.  B.  164;  Hill  v.  Owen,  5  Blackf.  (Ind.) 
323,  35  A.  D.  124;  Laird  v.  Eichold,  10  Ind.  212,  71  A.  D.  323. 


286  LAW    OF   EVIDENCE. 

cised  due  care.  He  is  liable  as  an  insurer  without  reference  to 
whether  he  was  negligent.631 

The  rule  casting  on  the  innkeeper  the  burden  of  showing  due 
care  does  not  apply  in  favor  of  permanent  boarders  or  others 
staying  at  the  hotel  under  a  special  contract;632  and,  in  cases 
where  the  rule  applies,  the  recovery  is  restricted  to  damages 
for  the  loss  of  or  injury  to  only  such  property  as  the  guest 
has  with  him  for  the  purposes  of  the  journey.653 

(c)  Telegraph  companies.  In  an  action  against  a  telegraph 
company  for  negligence  in  reference  to  the  transmission  of  a 
message,  the  plaintiff  makes  a  prima  facie  case  by  adducing 
evidence  that  the  message  was  not  transmitted  by  the  company 
in  the  form  in  which  it  was  delivered  and  accepted  for  trans- 
mission, to  the  plaintiff's  damage;  and  the  burden  of  adducing 
evidence  then  shifts  to  the  defendant,  who  must  offer  evidence 

OBI  Loss.  Mateer  v.  Brown,  1  Cal.  221,  52  A.  D.  303;  Pinkerton  v. 
Woodward,  33  Cal.  557,  91  A.  D.  657;  Norcross  v.  Norcross,  53  Me.  163; 
Towson  v.  Havre  de  Grace  Bank,  6  Har.  &  J.  (Md.)  47,  14  A.  D.  254; 
Mason  v.  Thompson,  9  Pick.  (Mass.)  280,  20  A.  D.  471;  Dunbier  v.  Day, 
12  Neb.  596,  41  A.  R.  772;  Grinnell  v.  Cook,  3  Hill  (N.  Y.)  485,  38  A.  D. 
663;  Clute  v.  Wiggins,  14  Johns.  (N.  Y.)  175,  7  A.  D.  448;  Hulett  v. 
Swift,  33  N.  Y.  571,  88  A.  D.  405;  Piper  v.  Manny,  21  Wend.  (N.  Y.) 
282;  Neal  v.  Wilcox,  49  N.  C.  (4  Jones)  146,  67*  A.  D.  266. 

Injury.  Russell  v.  Pagan,  7  Houst.  (Del.)  389;  Shaw  v.  Berry,  31 
Me.  478,  52  A.  D.  628;  Sibley  v.  Aldrich,  33  N.  H.  553,  66  A.  D.  745.' 

This  strict  rule  does  riot  prevail  in  all  states.  Cutler  v.  Bonney,  30 
Mich.  259,  18  A.  R.  127.  And  see  cases  cited  in  the  two  notes  pre- 
ceding. 

052  Chamberlain  v.  Masterson,  26  Ala.  371;  Homer  v.  Harvey,  3 
Johns.  (N.  M.)  197;  Mowers  v.  Fethers,  61  N.  Y.  34,  19  A.  R.  244;  Neal 
v.  Wilcox,  49  N.  C.  (4  Jones)  146,  67  A.  D.  266;  Manning  v.  Wells,  9 
Humph.  (Tenn.)  746,  51  A.  D.  688. 

653  Fisher  v.  Kelsey,  121  U.  S.  383;  Neal  v.  Wilcox,  49  N.  C.  (4  Jones) 
146,  67  A.  D.  266. 

The  innkeeper's  liability  is  not  restricted  to  the  guest's  reasonable 
traveling  expenses,  however.  Berkshire  Woollen  Co.  v.  Proctor,  7  Gush. 
(Mass.)  417;  Smith  v.  Wilson,  36  Minn.  334;  Wilkins  v.  Earle,  44  N.  Y. 
172,  4  A.  R.  655.  Contra,  Treiber  v.  Burrows,  27  Md.  130. 


§  68 c  NEGLIGENCE.  287 

tending  to  show  that  it  exercised  due  care.054  A  prima  facie 
case  casting  the  burden  of  adducing  evidence  on  the  company 
is  also  made  where  nondelivery055  or  unreasonable  delay  in  de- 
livery056 of  the  message  is  shown. 

Connecting  lines.  If  a  telegraph  company  sued  for  neg- 
ligence in  transmission  would  avoid  liability  on  the  ground 
that  the  mistake  occurred  on  some  connecting  line,  it  has  the 
burden  of  proving  that  fact.657 

054  W.  U.  Tel.  Co.  v.  Chamblee,  122  Ala.  428,  82  A.  S.  R.  89;  W.  U.  Tel. 
Co.  v.  Tyler,  74  111.  168,  24  A.  R.  279;  Tyler  v.  W.  U.  Tel.  Co.,  60  111. 
421,  14  A.  R.  38;  W.  U.  Tel.  Co.  v.  Meek,  49  Ind.  53  (semble) ;  Turner 
v.  Hawkeye  Tel.  Co.,  41  Iowa,  458,  20  A.  R.  605;  W.  U.  Tel.  Co.  v.  Crall, 
38  Kan.  679,  5  A.  S.  R.  795;  Ayer  v.  W.  U.  Tel.  Co.,  79  Me.  493,  1  A.  S. 
R.  353;  Bartlett  v.  W.  U.  Tel.  Co.,  62  Me.  209,  16  A.  R.  437;  W.  U.  Tel. 
Co.  v.  Carew,  15  Mich.  525,  534  (semble);  Reed  v.  W.  U.  Tel.  Co.,  135 
Mo.  661,  58  A.  S.  R.  609;  Rittenhouse  v.  Independent  Line  of  Tel.,  44 
N.  Y.  263,  4  A.  R.  673;  Hendricks  v.  W.  U.  Tel.  Co.,  126  N.  C.  304,  78 
A.  S.  R.  658;  Tel.  Co.  v.  Griswold,  37  Ohio  St.  301,  41  A.  R.  500; 
Pinckney  v.  W.  U.  Tel.  Co.,  19  S.  C.  71,  81  (semble). 

The  contrary  is  held  in  some  states  where  the  contract  of  transmis- 
sion contains  a  condition  requiring  a  party  who  desires  a  message  to  be 
sent  with  absolute  correctness  to  have  it  repeated.  White  v.  W.  U.  Tel. 
Co.,  14  Fed.  710;  Sweatland  v.  111.  &  M.  Tel.  Co.,  27  Iowa,  433,  1  A.  R. 
285;  U.  S.  Tel.  Co.  v.  Gildersleve,  29  Md.  232  (semble);  Ellis  v.  Amer- 
ican Tel.  Co.,  13  Allen  (Mass.)  226;  Becker  v.  W.  U.  Tel.  Co.,  11  Neb. 
87,  38  A.  R.  356. 

The"  burden  of  proving  that  the  damages  resulted  from  the  company's 
negligence  rests  on  the  sender  of  the  message.  McPeek  v.  W.  U.  Tel. 
Co.,  107  Iowa,  356,  70  A.  S.  R.  205. 

ess  w.  U.  Tel.  Co.  v.  Howell,  95  Ga.  194,  51  A.  S.  R.  68;  Fowler  v.  W. 
U.  Tel.  Co.,  80  Me.  381,  6  A.  S.  R.  211;  Baldwin  v.  U.  S.  Tel.  Co.,  45 
N.  Y.  744,  6  A.  R.  165,  170.  Contra,  U.  S.  Tel.  Co.  v.  Gildersleve,  29 
Md.  232. 

056  Harkness  v.  W.  U.  Tel.  Co.,  73  Iowa,  190,  5  A.  S.  R.  672. 

If,  however,  delivery  limits  have  been  prescribed,  the  burden  of  show- 
ing that  the  addressee  resided  within  the  limits  rests  on  the  plaintiff, 
in  an  action  for  delay  in  delivery.  W.  U.  Tel.  Co.  v.  Henderson,  S9  Ala. 
510,  18  A.  S.  R.  148. 

«"  Turner  v.  Hawkeye  Tel.  Co.,  41  Iowa,  458,  20  A.  R.  605;  De  La 
Grange  v.  S.  W.  Tel.  Co..  25  La.  Ann.  383. 


288  LAW  OF  EVIDENCE.  §  68d 

(d)  Carriers  of  goods.  In  an  action  against  a  common  car- 
rier of  goods  for  injury  or  loss,  the  plaintiff  bears  throughout 
the  trial  the  burden  of  proof  in  the  sense  that  he  must  con- 
vince the  jury  of  the  existence  of  the  facts  on  which  his  right 
to  recover  depends,  and  as  an  incident  thereto  he  bears  at  the 
beginning  of  the  trial  the  burden  of  adducing  evidence  of  an 
undertaking  to  carry  and  a  default  therein  on  the  part  of  the 
carrier.658  The  plaintiff  makes  a  prima  facie  case,  however, 
by  showing  that  the  carrier  undertook  to  carry  the  goods,  and 
that  they  were  delivered  to  the  consignee  in  a  damaged  condi- 
tion, or  that  they  were  not  delivered  in  the  ordinary  course  of 
business,  or  that  they  were  not  delivered  at  all.  The  burden 
of  adducing  evidence  then  shifts  to  the  carrier,  who  must  offer 
evidence  tending  to  show  that  its  default  was  due  to  act  of 
God  or  of  the  public  enemy,  or  to  restraint  of  law,  or  to  some 
inherent  defect  in  the  property  itself,  or  to  some  fault  on  the 
part  of  the  shipper,659  or  that  the  loss,  injury,  or  delay  is  other- 
ess  Western  Transp.  Co.  v.  Downer,  11' Wall.  (U.  S.)  129;  Cooper  v. 
Ga.  Pac.  R.  Co.,  92  Ala.  329,  25  A.  S.  R.  59;  South  &  N.  A.  R.  Co.  v. 
Wood,  71  Ala.  215,  46  A.  R.  309;  Savannah,  F.  &  W.  R.  Co.  v.  Harris, 
26  Fla.  148,  23  A.  S.  R.  551;  Woodbury  v.  Frink,  14  111.  279;  Boehl  v. 
C.,  M.  &  St.  P.  R.  Co.,  44  Minn.  191;  Mann  v.  Birchard,  40  Vt.  326,  94 
A.  D.  398. 

Loss  of  baggage.    Long  v.  Pa.  R.  Co.,  147  Pa.  343,  30  A.  S.  R.  732. 

If,  when  sued  for  failure  to  deliver  the  goods,  the  carrier  admits  the 
contract,  and  alleges,  by  way  of  affirmative  defense,  that  the  goods  were 
safely  carried  to  their  destination,  and  held  thereafter  by  the  carrier 
simply  as  warehouseman  until  their  destruction  by  fire  without  fault 
on  its  part,  the  burden  of  proving  that  defense,  including  freedom  from 
negligence,  rests  on  the  carrier.  Wilson  v.  Cal.  C.  R.  Co.,  94  Cal.  166, 
17  L.  R.  A.  685. 

650  UNITED  STATES:  kelson  v.  Woodruff,  1  Black,  156.  And  see,  gen- 
erally, 7  Current  Law,  548. 

ALABAMA:  McCarthy  v.  L.  &  N.  R.  Co.,  102  Ala.  193,  48  A.  S.  R.  29; 
Richmond  &  D.  R.  Co.  v.  Trousdale,  99  Ala.  389,  42  A.  S.  R.  69. 

FLORIDA:  Savannah,  F.  &  W.  R.  Co.  v.  Harris,  26  Fla.  148,  23  A.  S. 
R.  551. 

GEORGIA:     Cent.  R.  Co.  v.  Hasselkus,  91  Ga.  382,  44  A.  S.  R.  37;  Van 


§    68d  NEGLIGENCE.  289 

wise  within  an  exception  of  the  bill  of  lading  or  shipping  re- 
ceipt.660 

Winkle  v.  S.  C.  R.  Co.,  38  Ga.  32;  Southern  Exp.  Co.  v.  Newby,  36  Ga. 
635,  91  A.  D.  783. 

ILLINOIS:     Dunseth  v.  Wade.  3  111.  285. 

IOWA:     Mitchell  v.  U.  S.  Exp.  Co.,  46  Iowa,  214. 

LOUISIANA:  Montgomery  v.  Ship  Abby  Pratt,  6  La.  Ann.  410;  Kirk  v. 
Folsom,  23  La,  Ann.  584;  Chapman  v.  N.  O.,  J.  &  G.  N.  R.  Co.,  21  La, 
Ann.  224,  99  A.  D.  722;  Hunt  v.  Morris,  6  Mart.  676,  12  A.  D.  489. 

MAINE:  Little  v.  B.  &  M.  R.  R.,  66  Me.  239;  Bennett  v.  American  Exp. 
Co.,  83  Me.  236,  23  A.  S.  R.  774. 

MINNESOTA:  Hull  v.  C.,  St.  P.,  M.  &  O.  R.  Co.,  41  Minn.  510,  16  A. 
S.  R.  722,  724  (semble-) ;  Boehl  v.  C.,  M.  &  St.  P.  R.  Co.,  44  Minn;  191. 

NEW  HAMPSHIRE:     Hall  v.  Cheney,  36  N.  H.  26. 

NEW  YOBK:  Wheeler  v.  Oceanic  S.  N.  Co.,  125  N.  Y.  155,  21  A.  S.  R. 
729. 

NORTH  CAROLINA:     Hinkle  v.  S.  R.  Co.,  126  N.  C.  932,  78  A.  S.  R.  685. 

PENNSYLVANIA:  Leonard  v.  Hendrickson,  18  Pa.  40,  55  A.  D.  587;  Pa. 
R.  Co.  v.  Raiordon,  119  Pa.  577,  4  A.  S.  R.  670,  671  (semble). 

SOUTH  CAROLINA:  Smyrl  v.  Niolon,  2  Bailey,  421,  23  A.  D.  146; 
Ewart  v.  Street,  2  Bailey,  157,  23  A.  D.  131. 

TENNESSEE:  Merchants'  Dispatch  Transp.  Co.  v.  Bloch,  86  Tenn.  392, 
6  A.  S.  R.  847. 

VERMONT:     Mann  v.  Birchard,  40  Vt.  326,  94  A.  D.  398. 

WISCONSIN:  Browning  v.  Goodrich  Transp.  Co.,  78  Wis.  391,  23  A.  S. 
R.  414. 

Slight  evidence  of  loss  or  nondelivery  will  suffice  to  shift  the  burden 
of  adducing  evidence  to  the  carrier.  Chicago  &  N.  W.  R.  Co.  v.  Dickin- 
son, 74  111.  249;  Day  v.  Ridley,  16  Vt.  48,  42  A.  D.  489.  And  see  Griffiths 
v.  Lee,  1  Car.  &  P.  110.  But  the  burden  of  adducing  evidence  does  not 
thus  shift  if  the  plaintiff's  own  evidence  tends  to  show  that  the  cause 
of  the  loss  is  one  for  which  the  carrier  is  not  liable.  The  Henry  B. 
Hyde,  90  Fed.  114,  32  C.  C.  A.  534;  Bell  v.  Reed,  4  Bin.  (Pa.)  127,  5  A. 
D.  398. 

If  a  carrier  delivers  the  goods  to  one  other  than  the  consignee,  it  as- 
sumes the  burden  of  proving  the  latter's  ownership  or  agency.  Adams 
v.  Blankenstein,  2  Cal.  413,  56  A.  D.  350;  Wolfe  v.  Mo.  Pac.  R.  Co.,  97 
Mo.  473,  10  A.  S.  R.  331;  Shenk  v.  Phila.  Steam  Propeller  Co.,  60  Pa. 
109,  100  A.  D.  541.  And  see  Lawrence  v.  Minturn,  17  How.  (U.  S.) 
100,  107. 

Loss  of  personal  effects  in  the  custody  of  a  passenger  on  a  sleeping 
car  does  not  raise  a  presumption  of  negligence  on  the  carrier's  part, 

Hammon,  Ev. — 19. 


290  L>A.W   OF  EVIDENCE.  §  68d 

Even  though  the  loss  or  injury  or  delay  is  within  an  excep- 
tion of  the  contract  of  carriage,  yet,  if  it  occurs  through  the 

and,  accordingly,  the  burden  of  adducing  evidence  of  negligence  fesfe 
on  the  passenger.  Carpenter  v.  N.  Y.,  N.  H.  &  H.  R.  Co.,  124  N.  Y.  53, 
21  A.  S.  R.  644. 

A  carrier,  in  accepting  goods  for  shipment,  is  presumed  to  know 
whether  they  can  be  transported  without  such  delay  as  will  injure  or 
destroy  goods  of  the  character  accepted.  Blodgett  v.  Abbot,  72  Wis.  516, 
7  A.  S.  R.  873. 

eco  UNITED  STATES:  Clark  v.  Barnwell,  12  How.  272;  Rich  v.  Lam- 
bert, 12  How.  347;  Bancroft-Whitney  Co.  v.  Queen  of  the  Pac.,  75  Fed.  74. 

FLORIDA:     Bennett  v.  Filyaw,  1  Fla.  403. 

ILLINOIS:  Western  Transp.  Co.  v.  Newhall,  24  111.  466,  76  A.  D.  760; 
Chicago  &  N.  W.  R.  Co.  v.  Calumet  Stock  Farm,  194  111.  9,  88  A.  S.  R.  69. 

INDIANA:  Terre  Haute  &  L.  R.  Co.  v.  Sherwood,  132  Ind.  129,  32  A. 
S.  R.  239. 

KANSAS:     Kallman  v.  U.  S.  Exp.  Co.,  3  Kan.  205. 

MAINE:     Fillebrown  v.  G.  T.  R.  Co.,  55  Me.  462,  92  A.  D.  606. 

MASSACHUSETTS:  Alden  v.  Pearson,  3  Gray,  342;  Shaw  v.  Gardner,  12 
Gray,  488. 

MICHIGAN:  McMillan  v.  Mich.  S.  &  N.  I.  R.,  16  Mich.  79,  93  A.  D.  208; 
Bonfiglio  v.  L.  S.  &  M.  S.  R.  Co.,  125  Mich.  476. 

MINNESOTA:  Hull  v.  C.,  St.  P.,  M.  &  O.  R.  Co.,  41  Minn.  510,  16  A.  S. 
R.  722;  Lindsley  v.  C.,  M.  &  St.  P.  R.  Co.,  36  Minn.  539,  1  A.  S.  R.  692; 
Hinton  v.  E.  R.  Co.,  72  Minn.  339. 

MISSISSIPPI:     Southern  Exp.  Co.  v.  Moon,  39  Miss.  822. 

MISSOURI:  Witting  v.  St.  L.  &  S.  F.  R.  Co.,  101  Mo.  631,  20  A.  S.  R. 
636;  Hill  v.  Sturgeon,  28  Mo.  323;  Wolf  v.  American  Exp.  Co.,  43  Mo. 
421,  97  A.  D.  406;  Read  v.  St.  L.,  K.  C.  &  N.  R.  Co.,  60  Mo.  199. 

NOBTH  CAROLINA:  Mitchell  v.  C.  C.  R.  Co.,  124  N.  C.  236,  44  L.  R.  A. 
515. 

OHIO:  U.  S.  Exp.  Co.  v.  Backman,  28  Ohio  St.  144;  Pittsburgh,  C. 
&  St.  L.  R.  Co.  v.  Barrett,  36  Ohio  St.  448,  453. 

SOUTH  CAROLINA:  Wallingford  v.  C.  &  G.  R.  Co.,  26  S.  C.  258;  John- 
stone  v.  R.  &  D.  R.  Co.,  39  S.  C.  55;  Cameron  v.  Rich,  4  Strob.  Law,  168, 
53  A.  D.  670. 

TENNESSEE:     Turney  v.  Wilson,  7  Yerg.  340,  27  A.  D.  515. 

TEXAS  :     Mo.  Pac.  R.  Co.  v.  China  Mfg.  Co.,  79  Tex.  26. 

WEST  VIRGINIA:     Brown  v.  Adams  Exp.  Co.,  15  W.  Va.  812. 

WISCONSIN:  Browning  v.  Goodrich  Transp.  Co.,  78  Wis.  391,  23  A.  S. 
R.  414. 

The  same  rule  applies  in  favor  of  a  passenger  whose  baggage  has  been 


§  68d  NEGLIGENCE.  291 

negligence  of  the  carrier,  he  is  nevertheless  liable.661  Accord- 
ingly, in  order  to  rebut  the  prima  facie  case  made  against  him 
by  evidence  of  a  default,  he  must  in  many  jurisdictions  ad- 
duce evidence,  not  only  that  the  loss,  injury,  or  delay  arose 
from  an  excepted  cause,  but  also  that  he  was  not  guilty  of 
negligence  contributing  to  it.662  In  other  jurisdictions  a  con- 
lost  or  injured  in  transit.  Montgomery  &  E.  R.  Co.  v.  Culver,  75  Ala. 
587. 

A  stipulation  limiting  the  carrier's  common-law  liability,  to  be  valid, 
must  be  reasonable,  and  the  burden  of  showing  it  so  rests  on  the  car- 
rier. Hinkle  v.  So.  R.  Co.,  126  N.  C.  932,  78  A.  S.  R.  685  (semble); 
Tex.  &  P.  R.  Co.  v.  Reeves,  90  Tex.  499.  And  see  Cox  v.  Cent.  Vt.  R., 
170  Mass.  129. 

eel  Terre  Haute  &  L.  R.  Co.  v.  Sherwood,  132  Ind.  129,  32  A.  S.  R.  239; 
Sager  v.  P.,  S.  &  P.  &  E.  R.  Co.,  31  Me.  228,  50  A.  D.  659;  Boehl  v.  C., 
M.  &  St.  P.  R.  Co.,  44  Minn.  191;  Witting  v.  St.  L.  &  S.  F.  R.  Co.,  101 
Mo.  631,  20  A.  S.  R.  636;  Lamb  v.  C.  &  A.  R.  &  T.  Co.,  46 N.  Y.  271,  7  A. 
R.  327. 

The  rule  is  the  same  as  to  carriers  of  passengers.  Richmond  v.  So. 
Pac.  Co.,  41  Or.  54,  93  A.  S.  R.  694;  Crary  v.  L.  V.  R.Co.,  203  Pa.  525, 
93  A.  S.  R.  778. 

««2  ALABAMA:  Grey's  Ex'r  v.  Mobile  Trade  Co.,  55  Ala.  387,  28  A.  R. 
729;  Steele  v.  Townsend,  37  Ala.  247,  79  A.  D.  49. 

CONNECTICUT:  Mears  v.  N.  Y.,  N.  H.  &  H.  R.  Co.,  75  Conn.  171,  56 
L.  R.  A.  884. 

GEORGIA:  Berry  v.  Cooper,  28  Ga.  543;  Ga.  R.  &  B.  Co.  v.  Keener,  93 
Ga.  808,  44  A.  S.  R.  197. 

LOUISIANA:     Tardos  v.  Ship  Toulon,  14  La.  Ann.  429,  74  A.  D.  435. 

MINNESOTA:  Hinton  v.  E.  R.  Co.,  72  Minn.  339;  Shriver  v.  S.  C.  & 
St.  P.  R.  Co.,  24  Minn.  506,  31  A.  R.  353. 

MISSISSIPPI:  Chicago,  St.  L.  &  N.  O.  R.  Co.  v.  Moss,  60  Miss.  1003,  45 
A.  R.  428;  Newberger  Cotton  Co.  v.  111.  C.  R.  Co.,  75  Miss.  303;  Johnson 
v.  Ala.  &  V.  R.  Co.,  69  Miss.  191,  30  A.  S.  R.  534. 

NORTH  CAROLINA:  Mitchell  v.  C.  C.  R.  Co.,  124  N.  C.  236,  44  L.  R.  A. 
515;  Hinkle  v.  So.  R.  Co.,  126  N.  C.  932,  78  A.  S.  R.  685,  688. 

OHIO:  Gaines  v.  Union  T.  &  I.  Co.,  28  Ohio  St.  418;  U.  S.  Exp.  Co.  v. 
Backman,  28  Ohio  St.  144;  Graham  v.  Davis,  4  Ohio  St.  362,  62  A.  D. 
285. 

PENNSYLVANIA:     Buck  v.  Pa.  R.  Co.,  150  Pa.  170,  30  A.  S.  R.  800. 

SOUTH  CAROLINA:     Swindler  v.  Hilliard,  2  Rich.  Law,  286,  45  A.  D 


292  LAW   OF   EVIDENCE. 

trary  view  is  upheld,  and,  when  the  earriei  adduces  evidence 
that  the  cause  of  the  default  is  within  an  exception  of  the  bill 
of  lading  or  shipping  receipt,  the  burden  of  adducing  evidence 
shifts  to  the  plaintiff,  who  must  accordingly  introduce  evidence 
of  negligence,  if  he  asserts  it.6G3  In  some  cases  a  distinction  is 

732;  Baker  v.  Brinson,  9  Rich.  Law,  201,  67  A.  D.  548;  Wallingford  v.  >_. 
&  G.  R.  Co.,  26  S.  C.  258. 

TEXAS:  Ryan  v.  M.,  K.  &  T.  R.  Co.,  65  Tex.  13,  57  A.  R.  589;  Tex. 
&  P.  R.  Co.  v.  Richmond,  94  Tex.  571;  Mo.  Pac.  R.  Co.  v.  China  Mfg. 
Co.,  79  Tex.  26. 

WEST  VIRGINIA:     Brown  v.  Adams  Exp.  Co.,  15  W.  Va.  812. 

If,  however,  in  addition  to  the  fact  of  loss,  delay,  or  injury,  it  ap- 
pears that  it  occurred  under  circumstances  which  do  not  import  neg- 
ligence on  the  part  of  the  carrier,  the  burden  of  proving  negligence 
rests  on  the  shipper.  Memphis  &  C.  R.  Co.  v.  Reeves,  10  Wall.  (U.  S.) 
176;  Buck  v.  Pa.  R.  Co.,  150  Pa.  170,  30  A.  S.  R.  800;  Colton  v.  C.  &  P. 
R.  Co.,  67  Pa.  211,  5  A.  R.  424. 

oca  ENGLAND:     The  Glendarroch  [1894]  Prob.  226. 

UNITED  STATES:  Western  Transp.  Co.  v.  Downer,  11  Wall.  129;  Clark 
v.  Barnwell,  12  How.  272;  The  Henry  B.  Hyde,  90  Fed.  114,  32  C.  C.  A. 
534. 

ARKANSAS:     Little  Rock,  M.  R.  &  T.  R.  Co.  v.  Talbot,  39  Ark.  523. 

INDIANA:  Ins.  Co.  of  N.  A.  v.  L.  E.  &  W.  R.  Co.,  152  Ind.  333;  Reid 
v.  E.  &  T.  H.  R.  Co.,  10  Ind.  App.  385,  53  A.  S.  R.  391. 

IOWA:     Mitchell  v.  U.  S.  Exp.  Co.,  46  Iowa,  214. 

KANSAS:  Kan.  Pac.  R.  Co.  v.  Reynolds,  8  Kan.  623;  Kallman  v.  U. 
S.  Exp.  Co.,  3  Kan.  205. 

LOUISIANA:  Kirk  v.  Folsom,  23  La.  Ann.  584;  Kelham  v.  Steamship 
Kensington,  24  La.  Ann.  100. 

MAINE:     Sager  v.  P.,  S.  &  P.  &  E.  R.  Co.,  31  Me.  228,  50  A.  D.  659. 

MARYLAND:     Bankard  v.  B.  &  O.  R.  Co.,  34  Md.  197,  6  A.  R.  321. 

MICHIGAN:     Smith  v.  American  Exp.  Co.,  108  Mich.  572   (semble). 

MISSOURI:  Witting  v.  St.  L.  &  S.  F.  R.  Co.,  101  Mo.  631,  20  A.  S.  R. 
636;  Otis  Co.  v.  Mo.  Pac.  R.  Co.,  112  Mo.  622;  Stanard  Mill  Co.  v.  White 
Line  C.  T.  Co.,  122  Mo.  258;  Read  v.  St.  L.,  K.  C.  &  N.  R.  Co.,  60  Mo. 
199. 

NEW  YORK:  Lamb  v.  C.  &  A.  R.  &  T.  Co.,  46  N.  Y.  271,  7  A.  R.  327; 
Whitworth  v.  E.  R.  Co.,  87  N.  Y.  413. 

TENNESSEE:  Lancaster  Mills  v.  Merchants'  C.  P.  Co.,  89  Tenn.  1,  24 
A.  S.  R.  586;  Louisville  &  N.  R.  Co.  v.  Manchester  Mills,  88  Tenn.  653. 

It  is  held  in  Pennsylvania,  however,  that  if  the  shipper  introduces 


§  68d  NEGLIGENCE.  293 

made  in  reference  to  this  latter  point  where  the  shipper  ac- 
companies his  property  in  transit.  Here,  it  is  thought,  the 
shipper's  means  of  knowledge  are  equal  to  the  carrier's,  and 
the  burden  of  showing  negligence  therefore  rests  on  him  when 
the  carrier  shows  that  the  default  was  due  to  a  cause  excepted 
by  the  bill  of  lading  or  shipping  receipt.664 

Connecting  carriers.    In  the  case  of  connecting  carriers, 

if  goods  received  by  the  consignee  in  a  damaged  condition  are 
shown  to  have  been  delivered  in  good  condition  to  the  initial 
carrier,  the  presumption  is  that  they  were  in  that  condition 
when  they  came  into  the  hands  of  the  last  carrier,  and  he  may 
accordingly  be  held  liable,  in  the  absence  of  evidence  to  dis- 
prove the  presumption.665  So,  if  the  goods  delivered  to  the 

evidence  of  an  injurious  accident,  a  presumption  of  negligence  arises, 
and  the  carrier  must  rebut  it.  Buck  v.  Pa.  R.  Co.,  150  Pa.  170,  30  A. 
S.  R.  800;  Pa.  R.  Co.  v.  Raiordon,  119  Pa.  577,  4  A.  S.  R.  670. 

Evidence  of  negligence  may  be  expressly  required  of  the  shipper  by 
stipulation  in  the  bill  of  lading.  Platt  v.  R.,  Y.  R.  &  C.  R.  Co.,  108  N. 
Y.  358;  Schaller  v.  C.  &  N.  W.  R.  Co.,  97  Wis.  31. 

These  rules  are  the  same  as  to  carriers  of  passengers.  Crary  v.  L. 
V.  R.  Co.,  203  Pa.  525,  93  A.  S.  R.  778. 

66*  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Weakly,  50  Ark.  397,  7  A.  S.  R. 
104;  Terre  Haute  &  L.  R.  Co.  v.  Sherwood,  132  Ind.  129,  32  A.  S.  R.  239; 
Greve  v.  111.  Cent.  R.  Co.,  104  Iowa,  659;  Clark  v.  St.  L.,  K.  C.  &  N.  R. 
Co.,  64  Mo.  440.  Contra,  Crawford  v.  S.  R.  Co.,  56  S.  C.  136. 

It  will  be  observed  that  the  cases  in  which  this  distinction  is  made, 
with  the  exception  of  the  Texas  case  cited  below,  were  decided  in 
those  states,  as  listed  in  the  preceding  note,  wherein  it  is  held  that 
the  burden  of  adducing  evidence  of  negligence  rests  on  the  shipper. 

The  rule  that,  where  a  carrier  limits  its  liability  to  cases  of  injury 
received  on  its  own  line,  and  the  goods  are  injured,  the  burden  is  on 
the  carrier  to  show  that  the  injury  did  not  occur  on  its  own  line,  or, 
if  the  injury  occurred  in  part  on  its  own  line,  and  in  part  on  a  con- 
necting line,  it  must  show  what  part  of  the  injury  occurred  on  its 
own  line  in  order  to  relieve  itself  from  liability  for  the  whole,  does 
not  apply  to  shipments  of  live  stock  which  the  shipper  accompanies 
in  transit  and  agrees  to  care  for.  St.  Louis  S.  W.  R.  Co.  v.  Vaughan 
<Tex.  Civ.  App.)  41  S.  W.  415. 

665  Cooper  v.  Ga.  Pac.  R.  Co.,  92  Ala.  329,  25  A.  S.  R.  59;  Savannah, 


294  LAW   OF  EVIDENCE. 

initial  carrier  are  shown  to  have  been  lost  or  destroyed,  and 
suit  is  brought  against  a  connecting  carrier,  the  burden  of 
showing  that  the  default  did  not  occur  on  its  line  rests  upon 
the  defendant.666  The  operation  of  this  presumption  is  lim- 
ited to  the  last  connecting  carrier.  It  does  not  prevail  against 
an  intermediate  carrier  through  whose  hands  the  goods  have 
passed.667 

If,  by  its  contract  with  the  shipper,  the  initial  carrier  under- 
takes to  deliver  the  goods,  not  at  their  destination,  but  only 
to  the  next  connecting  carrier,  the  shipper  makes  a  prima 
facie  case  against  the  initial  carrier  by  showing  nondelivery 
at  the  point  of  destination,  and  the  burden  is  accordingly  cast 

F.  &  W.  R.  Co.  v.  Harris,  26  Fla.  148,  23  A.  S.  R.  551;  Forrester  v.  Ga. 
R.  &  B.  Co.,  92  Ga.  699;  Beard  v.  111.  Cent.  R.  Co.,  79  Iowa,  518,  18 
A.  S.  R.  381;  Cote  v.  N.  Y.,  N.  H.  &  H.  R.  Co.,  182  Mass.  290,  94  A. 
S.  R.  656;  Shriver  v.  S.  C.  &  St.  P.  R.  Co.,  24  Minn.  506,  31  A.  R.  353; 
Mobile  &  O.  R.  Co.  v.  Tupelo  F.  Mfg.  Co.,  67  Miss.  35,  19  A.  S.  R.  262; 
Smith  v.  N.  Y.  Cent.  R.  Co.,  43  Barb.  225,  affirmed  41  N.  Y.  620;  Hinkle 
v.  So.  R.  Co.,  126  N.  C.  932,  78  A.  S.  R.  685;  Morganton  Mfg.  Co.  v.  O. 
R.  &  C.  R.  Co.,  121  N.  C.  514,  61  A.  S.  R.  679;  Dixon  v.  R.  &  D.  A. 
Co.,  74  N.  C.  538;  Texas  &  P.  R.  Co.  v.  Adams,  78  Tex.  372,  22  A.  S. 
R.  56.  Contra,  Marquette,  H.  &  O.  R.  Co.  v.  Kirkwood,  45  Mich.  51,  40 
A.  R.  453. 

The  rule  is  the  same,  even  where  the  goods  were  sent  through  in 
the  same  car.  Leo  v.  St.  P.,  M.  &  M.  R.  Co.,  30  Minn.  438. 

The  same  presumption  arises  against  the  last  connecting  carrier, 
where  baggage  is  delivered  to  the  passenger  at  the  end  of  the  route  in 
a  damaged  condition.  Montgomery  &  B.  R.  Co.  v.  Culver,  75  Ala.  587; 
Moore  v.  N.  Y.,  N.  H.  &  H.  R.  Co.,  173  Mass.  335,  73  A.  S.  R.  298,  Thayer, 
Gas.  Ev.  51. 

The  fact  of  delivery  in  bad  order  by  the  last  connecting  carrier  does 
not  found  a  presumption  against  the  initial  carrier  that  the  injury  oc- 
curred on  its  line.  Montgomery  &  E.  R.  Co.  v.  Culver,  75  Ala.  587. 

see  Cooper  v.  Ga.  Pac.  R.  Co.,  92  Ala.  329,  25  A.  S.  R.  59;  Savannah, 
F.  &  W.  R.  Co.  v.  Harris,  26  Fla.  148,  23  A.  S.  R.  551;  Faison  v.  Ala.  & 
V.  R.  Co.,  69  Miss.  569,  30  A.  S.  R.  577;  Memphis  &  C.  R.  Co.  v.  Hol- 
loway,  68  Tenn.  188;  Laughlin  v.  C.  &  N.  W.  R.  Co.,  28  Wis.  204,  9 
A.  R.  493. 

667  Montgomery  &  E.  R.  Co.  v.  Culver,  75  Ala.  587. 


§  69a  NEGLIGENCE.  295 

on  it  to  show  that  it  delivered  the  goods  to  the  next  connect- 
ing carrier  as  agreed.868 

§  69.    Carriers  of  passengers. 

If  a  passenger  is  injured  or  killed,  and  the  carrier  is  sued 
in  consequence,  the  plaintiff  bears  throughout  the  trial  the 
burden  of  proof  in  the  sense  that  he  must  convince  the  jury 
of  the  existence  of  the  facts  on  which  his  right  of  action  de- 
pends; and  as  an  incident  thereto  he  also  bears  at  the  begin- 
ning of  the  trial  the  burden  of  adducing  evidence  tending  to 
show  the  undertaking  to  carry,  and  that  while  in  the  defend- 
ant's care  the  passenger  was  injured  or  killed  as  the  result 
of  the  defendant's  negligence.669 

(a)  Res  ipsa  loquitur.  The  plaintiff  makes  a  prima  facie 
case,  however,  when  he  adduces  evidence  that  the  death  or  in- 
jury occurred  without  fault  on  the  passenger's  part  because  of 
an  accident  which  in  the  ordinary  course  of  events  would  not 
have  happened  in  the  absence  of  negligence  on  the  part  of  the 
defendant  or  its  servants.  This  done,  a  presumption  of  negli- 
gence arises,  and  the  burden  of  adducing  evidence  shifts  to 
the  defendant,  who  must  introduce  evidence  having  a  tendency 
to  show  that  it  was  in  the  exercise  of  due  care,  or  that  the 
accident  was  such  that  due  care  could  not  have  averted  it.670 

ees  Montgomery  &  E.  R.  Co.  v.  Culver,  75  Ala.  587. 

669  Wall  v.  Llvezay,  6  Colo.  465;  Baltimore  &  O.  R.  Co.  v.  State,  63  Md. 
135;  Mexican  Cent.  R.  Co.  v.  Lauricella,  87  Tex.  277,  47  A.  S.  R.  103. 
See,  generally,  7  Current  Law,  591. 

The  presumption  is  that  a  person  riding  as  a  passenger  is  in  fact 
such  (Louisville,  N.  A.  &  C.  R.  Co.  v.  Thompson,  107  Ind.  442,  57  A.  R. 
120),  unless  the  train  is  a  freight  train  (Purple  v.  U.  P.  R.  Co.,  114 
Fed.  123,  57  L.  R.  A.  700;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Headland, 
18  Colo.  477,  20  L.  R.  A.  822). 

670  Eagle  Packet  Co.  v.  Defries,  94  111.  598,  34  A.  R.  245;  Memphis 
ft  O.  R.  P.  Co.  v.  McCool,  83  Ind.  392,  43  A.  R.  71;  Baltimore  &  P.  R. 
Co.  v.  Swann,  81  Md.  400,  31  L.  R.  A.  313;   Lincoln  St.  R.  Co.  v.  Mc- 
Clellan,  54  Neb.  672,  69  A.  S.  R.  736;  Whalen  v.  Consol.  Traction  Co., 


296  LAW  OF  EVIDENCE.  §  69a 

Many  sorts  of  accidents  thus  give  rise  to  a  presumption  of 
negligence  on  the  part  of  the  carrier,  among  which  may  be 
mentioned  the  collision  of  trains  or  cars  on  the  same  line  of 
road;671  the  derailment  of  the  car;672  the  sudden  jerking  or 

61  N.  J.  Law,  606,  68  A.  S.  R.  723;  Miller  v.  Ocean  S.  S.  Co.,  118  N.  Y. 
199;  Budd  v.  United  Carriage  Co.,  25  Or.  314,  27  L.  R.  A.  279;  Keator 
v.  Scranton  Traction  Co.,  191  Pa.  102,  44  L.  R.  A.  546. 

Landslide.  Gleeson  v.  Va.  M.  R.  Co.,  140  U.  S.  435.  See,  however, 
Fleming  v.  P.,  C.,  C.  &  St.  L.  R.,  158  Pa.  130,  38  A.  S.  R.  835. 

Washout.     Phils,.  &  R.  R.  Co.  v.  Anderson,  94  Pa.  351,  39  A.  R.  787. 

Bursting  of  boiler.  The  Reliance,  4  Woods,  420,  2  Fed.  249.  And 
see  The  Sydney,  27  Fed.  119;  Spear  v.  Phila.,  W.  &  B.  R.  Co.,  119  Pa. 
61.  Explosions  generally,  see  page  272,  supra. 

The  presumption  of  negligence  arises  without  distinction  between 
accidents  caused  by  defects  in  the  equipment  or  errors  in  the  manage- 
ment of  the  train  and  those  caused  by  the  misconduct  of  copassengers. 
Pittsburg  &  C.  R.  Co.  v.  Pillow,  76  Pa.  510,  18  A.  R.  424.  And  in  some 
states  the  presumption  is  created  by  statute.  S.  W.  R.  v.  Singleton, 
67  Ga.  306. 

In  some  cases  it  is  said  that  the  mere  fact  that  the  passenger  re- 
ceives an  injury  without  fault  of  his  own  raises  a  presumption  of 
negligence  on  the  part  of  the  carrier.  Meier  v.  Pa.  R.  Co.,  64  Pa.  225, 
3  A.  R.  581  (semble);  Laing  v.  Colder,  8  Pa.  479,  49  A.  D.  533  (sem- 
ble).  Contra,  see  cases  cited  in  note  679,  infra. 

This  presumption  of  negligence,  while  it  shifts  to  defendant  the 
burden  of  adducing  evidence  of  due  care,  does  not  relieve  plaintiff  of 
the  burden  of  convincing  the  jury  of  the  existence  of  negligence  on 
defendant's  part.  Kay  v.  M.  St.  R.  Co.,  163  N.  Y.  447. 

67i  Skinner  v.  L.,  B.  &  S.  C.  R.  Co.,  5  Exch.  787;  Carter  v.  Kan.  City 
C.  R.  Co.,  42  Fed.  37;  Ga.  Pac.  R.  Co.  v.  Love,  91  Ala.  432,  24  A.  S.  R. 
927;  Smith  v.  St.  P.  City  R.  Co.,  32  Minn.  1,  50  A.  R.  550;  Graham 
v.  B.,  C.  R.  &  N.  R.  Co.,  39  Minn.  81;  New  Orleans,  J.  &  G.  N.  R.  Co. 
v.  Allbritton,  38  Miss.  242,  75  A.  D.  98;  Kay  v.  M.  St.  R.  Co.,  163  N.  Y. 
447;  Iron  R.  Co.  v.  Mowery,  36  Ohio  St.  418,  38  A.  R.  597;  Fredericks 
v.  N.  C.  R.  Co.,  157  Pa.  103,  22  L.  R.  A.  306;  Peterson  v.  Seattle  Trac- 
tion Co.,  23  Wash.  615,  53  L.  R.  A.  586. 

Breaking  apart  of  train  and  subsequent  collision  of  parts.  Louis- 
ville, N.  A.  &  C.  R.  Co.  v.  Fay  lor,  126  Ind.  126;  Tuttle  v.  C.,  R.  I.  A 
P.  R.  Co.,  48  Iowa,  236. 

Collision  of  vessels.  Bigelow  v.  Nickerson,  70  Fed.  113,  30  L.  R.  A. 
336. 


;§  69a  NEGLIGENCE.  297 

bumping  of  cars  ;678  the  falling  or  breaking  of  a  bridge  ;674  the 
striking  of  a  passenger  by  a  passing  train  or  some  object  pro- 

Ordinarily,  no  presumption  of  negligence  arises  from  the  collision 
of  a  train  or  car  with  a  train  or  car  or  vehicle  or  obstruction  not  under 
the  carrier's  control.  Chicago  St.  R.  Co.  v.  Rood,  163  111.  477,  54  A. 
S.  R.  478;  Cent.  Pass.  R.  Co.  v.  Kuhn,  86  Ky.  578,  9  A.  S.  R.  309 
(semble);  Federal  St.  &  P.  V.  R.  Co.  v.  Gibson,  96  Pa.  83;  Hawkins 
v.  F.  St.  C.  R.  Co.,  3  Wash.  St.  592,  28  A.  S.  R.  72.  Contra,  Louisville, 
N.  A.  &  C.  R.  Co.  v.  Hendricks,  128  Ind.  462;  Sullivan  v.  Phila.  &  R. 
R.  Co.,  30  Pa.  234,  72  A.  D.  698.  And  see  Carrico  v.  W.  Va.  C.  &  P.  R. 
Co.,  39  W.  Va.  86,  24  L.  R.  A.  50.  But  when  a  passenger  on  a  street 
car  is  injured  by  a  collision  between  the  car  and  a  train  at  a  railroad 
crossing,  the  presumption  arises  against  the  street  car  company.  Cent. 
Pass.  R.  Co.  v.  Kuhn,  86  Ky.  578,  9  A.  S.  R.  309.  And  the  same  is  true 
where  a  car  on  one  line  collides  with  a  car  on  another.  Osgood  v.  'L. 
A.  Traction  Co.,  137  Cal.  280,  92  A.  S.  R.  171. 

872  IRELAND:     Flannery  v.  W.  &  L.  R.  Co.,  Ir.  Rep.  11  C.  L.  30. 

ALABAMA:     Ala.  G.  S.  R.  Co.  v.  Hill,  93  Ala.  514,  30  A.  S.  R.  65. 

ARKANSAS:  St.  Louis  &  S.  F.  R.  Co.  v.  Mitchell,  57  Ark.  418;  Ark. 
Midland  R.  v.  Canman,  52  Ark.  517;  George  v.  St.  L.,  I.  M.  &  S.  R.  Co., 
34  Ark.  613;  Little  Rock  &  F.  S.  R.  Co.  v.  Miles,  40  Ark.  298,  48  A. 
R.  10. 

COLORADO:     Denver,  S.  P.  &  P.  R.  Co.  v.  Woodward,  4  Colo.  1. 

GEORGIA:     Cent.  R.  v.  Sanders,  73  Ga.  513  (statute). 

ILLINOIS:  Peoria,  P.  &  J.  R.  Co.  v.  Reynolds,  88  111.  418;  Galena  & 
C.  U.  R.  Co.  v.  Yarwood,  17  111.  509,  65  A.  D.  682. 

INDIANA:  Cleveland,  C.,  C.  &  I.  R.  Co.  v.  Newell,  75  Ind.  542;  Pitts- 
burgh, C.  &  St.  L.  R.  Co.  v.  Williams,  74  Ind.  462. 

MASSACHUSETTS:  Feital  v.  Middlesex  R.  Co.,  109  Mass.  398,  12  A.  R. 
720. 

MISSOURI:  Hipsley  v.  Kan.  City,  St.  J.  &  C.  B.  R.  Co.,  88  Mo.  348; 
Furnish  v.  Mo.  Pac.  R.  Co.,  102  Mo.  438,  22  A.  S.  R.  781. 

NEBRASKA:  Spellman  v.  Lincoln  R.  T.  Co.,  36  Neb.  890,  38  A.  S.  R. 
753. 

NEW  JERSEY:  Bergen  County  Traction  Co.  v.  Demarest,  62  N.  J.  Law, 
755,  72  A.  S.  R.  685. 

NEW  YORK:  Curtis  v.  R.  &  S.  R.  Co.,  18  N.  Y.  534,  75  A.  D.  258;  Sey- 
bolt  v.  N.  Y.,  L.  E.  &  W.  R.  Co.,  95  N.  Y.  562,  47  A.  R.  75;  Edgerton 
v.  N.  Y.  &  H.  R.  Co.,  39  N.  Y.  227,  229. 

TEXAS:  Mexican  Cent.  R.  Co.  v.  Lauricella,  87  Tex.  277,  47  A.  S. 
R.  103;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Smith,  74  Tex.  276. 

And  see  Mitchell  v.  S.  Pac.  R.  Co.,  87  Cal.  62,  11  L.  R.  A.  130;  Toledo, 


298  LAW   OF   EVIDENCE.  §   69a 

jecting  from  it;675  the  fall  of  a  fixture  in  a  car;676  the  upset- 
ting of  a  vehicle  drawn  by  horses;677  and  the  fall  of  an  ele- 
vator operated  in  a  building  for  public  use.678 

The  presumption  of  negligence  will  not  thus  arise,  it  will 
be  observed,  unless  there  is  evidence  tending  to  connect  the 
carrier  or  its  servants  or  some  of  its  appliances  with  the  hap- 
pening of  the  accident.  Accordingly,  in  the  absence  of  such 
evidence,  the  carrier  is  not  bound  to  show  the  cause  of  the 
accident,  or  that  it  exercised  due  care  to  protect  the  passen- 
ger. And  even  where  the  defendant's  connection  with  the 
accident  appears,  yet  no  presumption  of  negligence  arises  un- 
less it  or  the  circumstances  attending  it  are  such  as  to  indi- 

W.  &  W.  R.  Co.  v.  Beggs,  85  111.  80;  Cleveland,  C.,  C.  &  I.  R.  Co.  v. 
Newell,  104  Ind.  264. 

673  N.  J.  R.  Co.  v.  Pollard,  22  Wall.  (U.  S.)  341;  Birmingham  Union 
R.  Co.  v.  Hale,  90  Ala.  8,  24  A.  S.  R.  748;  Augusta  &  S.  R.  Co.  v.  Ran- 
dall, 79  Ga.  304;  City  &  S.  R.  v.  Findley,  76  Ga.  311   (semble) ;  Coudy 
v.  St.  L.,  I.  M.  &  S.  R.  Co.,  85  Mo.  79;  Dougherty  v.  Mo.  R.  Co.,  81  Mo. 
325,  51  A.  R.  239;   Kite  v.  M.  St.  R.  Co.,  130  Mo.  132,  51  A.  S.  R.  555. 
And  see  Baltimore  &  P.  R.  Co.  v.  Swann,  81  Md.  400,  31  L.  R.  A.  313.     . 

674  Bedford,  S.,  O.  &  B.  R.  Co.  v.  Rainbolt,  99  Ind.  551;   Louisville, 
N.  A.  &  C.  R.  Co.  v.  Snyder,  117  Ind.  435,  10  A.  S.  R.  60;  Baltimore  & 
O.  R.  Co.  v.  Noell's  Adm'r,  32  Grat.  (Va.)  394. 

675phila.,  W.  &  B.  R.  Co.  v.  Anderson,  72  Md.  519,  20  A.  S.  R.  483; 
Breen  v.  N.  Y.  C.  &  H.  R.  R.  Co.,  109  N.  Y.  297,  4  A.  S.  R.  450;  Hoi- 
brook  v.  U.  &  S.  R.,  12  N.  Y.  236,  64  A.  D.  502. 

676  Qch  v.  Mo.,  K.  &  T.  R.  Co.,  130  Mo.  27,  36  L.  R.  A.  442;  Cleveland, 
C.,  C.  &  I.  R.  Co.  v.  Walrath,  38  Ohio  St.  461,  43  A.  R.  433.     And  see 
Carroll  v.  C.,  B.  &  M.  R.  Co.,  99  Wis.  399,  67  A.  S.  R.  872. 

677  stokes  v.  Saltonstall,  13   Pet.    (U.  S.)    181;    Boyce  v.   Cal.  Stage 
Co.,  25  Cal.  460;  Bush  v.  Barrett,  96  Cal.  202;  Wall  v.  Livezay,  6  Colo. 
465;   Sanderson  v.  Frazier,  8  Colo.  79,  54  A.  R.  544;  Farish  v.  Reigle, 
11  Grat.  (Va.)   697,  62  A.  D.  666.     And  see  Christie  v.  Griggs,  2  Camp. 
79;  Lawrence  v.  Green,  70  Cal.  417,  59  A.  R.  428;  Ware  v.  Gay,  11  Pick. 
(Mass.)   106. 

678  Treadwell  v.  Whittier,  80  Cal.  575,  13  A.  S.  R.  175;   Springer  v. 
Ford,  189  111.  430,  52  L.  R.  A.  930;    Goodsell  v.  Taylor,  41  Minn.  207, 
16  A.  S.  R.  700. 


g  70  PARENT  AND  CHILD.  299 

cate  that  it  would  not  have  occurred  if  the  carrier  had  used 
suitable  appliances  or  employed  competent  servants  to  operate 
them.679 

Q.  PARENT  AND  CHILD. 

§  70.    Issue. 

A  presumption  is  said  to  arise  that  a  woman  advanced  in 
years  is  incapable  of  bearing  children.680  No  fixed  age  is  taken 
as  a  standard,  however;  and  whether  or  not  the  presumption 
arises  depends  upon  the  circumstances  of  the  particular  case.681 

87»  Wall  v.  Livezay,  6  Colo.  465;  McAfee  v.  Huidekoper,  9  App.  D.  C. 
36,  34  L.  R.  A.  720;  Chicago  St.  R.  Co.  v.  Rood,  163  111.  477,  54  A.  S. 
R.  478;  Fearn  v.  W.  J.  Ferry  Co.,  143  Pa.  122,  13  L.  R.  A.  366;  Fed- 
eral St.  &  P.  V.  R.  Co.  v.  Gibson,  96  Pa.  83;  Hawkins  v.  F.  St.  C.  R. 
Co.,  3  Wash.  St.  592,  28  A.  S.  R.  72. 

Passenger  injured  in  boarding  or  alighting.  Mitchell  v.  W.  &  A.  R., 
30  Ga.  22;  Le  Barren  v.  E.  B.  Ferry  Co.,  11  Allen  (Mass.)  312,  87  A.. 
D.  717;  Joy  v.  Winnisimmet  Co.,  114  Mass.  63;  Mitchell  v.  C.  &  G.  T. 
R.  Co.,  51  Mich.  236,  47  A.  R.  566;  Chicago,  St.  L.  &  N.  O.  R.  Co.  v.  Trot- 
ter, 60  Miss.  442;  Olferman  v.  U.  D.  R.  Co.,  125  Mo.  408,  46  A.  S.  R, 
483;  Delaware,  L.  &  W.  R.  Co.  v.  Napheys,  90  Pa.  135. 

Passenger  struck  by  missile.  Thomas  v.  Phila.  &  R.  R.  Co.,  148  Pa. 
180,  15  L.  R.  A.  416;  Pa.  R.  Co.  v.  MacKinney,  124  Pa.  462,  10  A,  S. 
R.  601.  And  see  Searles  v.  M.  R.  Co.,  101  N.  Y.  661  (cinder). 

Rock  falling  on  train.  Fleming  v.  P.,  C.,  C.  &  St.  L.  R.  Co.,  158  Pa. 
130,  38  A.  S.  R.  835.  See,  however,  Gleeson  v.  Va.  M.  R.  Co.,  140  U. 
S.  435. 

eso  in  re  Millner's  Estate,  L.  R.  14  Eq.  245  (wife  49  years  old). 
Contra,  List  v.  Rodney,  83  Pa.  483  (wife  75  years  old). 

Spinster  over  50  years  of  age.  In  re  Widdow's  Trusts,  L.  R.  11  Eq. 
408;  Maden  v.  Taylor,  45  Law  J.  Ch.  569;  Davidson  v.  Kimpton,  18 
Ch.  Div.  213;  Haynes  v.  Haynes,  35  Law  J.  Ch.  303;  Lyddon  v.  Ellison, 
19  Beav.  565;  Edwards  v.  Tuck,  23  Beav.  268. 

Widow  over  50  years  of  age.  In  re  Widdow's  Trusts,  L.  R.  11  Eq. 
408;  White  v.  Edmond,  70  Law  J.  Ch.  300,  [1901]  1  Ch.  570,  84  Law 
T.  (N.  S.)  199. 

68i  See  Application  of  Apgar,  37  N.  J.  Eq.  501. 

The  presumption  does  not  apply  to  a  woman  of  54  years,  who,  though 
she  has  never  borne  children,  has  lived  with  her  husband  but  three- 
years  last  past.  Croxton  v.  May,  9  Ch.  Div.  388. 


300  LAW    OF   EVIDENCE.  g   71 

o    •  • 

If  a  man  who  from  long  absence  is  presumed  to  be  dead  was 
single  when  last  heard  of,  the  presumption  is  that  he  died 
without  issue;682  but  if  he  was  married  when  last  known  to 
be  alive,  then  no  presumption  against  issue  arises.683  Nor  is 
there  any  presumption  that  a  married  woman  died  childless.684 

A  presumption  analogous  to  those  just  mentioned  is  that 
assuming  that  a  particular  decedent  has  left  heirs.685 

§  71.    Emancipation. 

The  presumption  is,  in  the  absence  of  evidence  to  the  con- 

The  court  will  not  indulge  the  presumption  so  as  to  deprive  a  living 
person  of  a  possible  interest.  In  re  Hocking  [1898]  2  Ch.  567. 

It  has  been  held  that,  regardless  of  evidence  to  the  contrary,  a 
woman  will  not  be  considered  past  child  bearing  until  she  is  50  years 
old.  Groves  v.  Groves,  9  Law  T.  (N.  S.)  533.  Contra,  In  re  Millner's 
Estate,  L.  R.  14  Eq.  245. 

esa  Doe  d.  Banning  v.  Griffin,  15  East,  293;  Miller  v.  Beates,  3  Serg. 
&  R.  (Pa.)  490;  Shown  v.  McMackin,  9  Lea  (Tenn.)  601,  42  A.  R. 
680.  And  see  McComb  v.  Wright,  5  Johns.  Ch.  (N.  Y.)  263.  This  is 
an  illustration  of  the  presumption  of  continuity.  See  §  34,  supra. 

The  presumption  has  been  indulged  in  cases  the  report  of  which 
does  not  show  that  the  decedent  was  single  when  last  heard  of.  Rowe 
v.  Hasland,  1  Wm.  Bl.  404;  Stinchfield  v.  Emerson,  52  Me.  465,  83  A. 
D.  524;  Sprigg  v.  Moale,  28  Md.  497,  92  A.  D.  698. 

ess  it  has  been  held  that,  under  these  circumstances,  the  presump- 
tion is  not  against,  but  in  favor  of  issue.  Faulkner's  Adm'r  v.  Willi- 
man,  13  Ky.  L.  R.  106,  16  S.  W.  352.  Contra,  Loring  v.  Steineman,  1 
Mete.  (Mass.)  204,  211.  This  is,  of  course,  true  where  the  absentee 
tad  children  when  last  heard  of.  Campbell  v.  Reed,  24  Pa.  498. 

It  has  been  held  that  there  is  no  presumption  against  issue,  even 
in  cases  the  report  of  which  does  not  show  that  the  absentee  was  mar- 
ried. Dudley  v.  Grayson,  6  T.  B.  Mon.  (Ky.)  259.  And  see  Hunt  v. 
Payne,  29  Vt.  172. 

esi  Hays  v.  Tribble,  3  B.  Mon.  (Ky.)  106. 

ess  pile  v.  McBratney,  15  111.  314;  Gladson  v.  Whitney,  9  Iowa,  267; 
Louisville  Bank  v.  Public  School  Trustees,  83  Ky.  219;  Wilbur  v.  Tobey, 
16  Pick.  (Mass.)  177;  University  of  N.  C.  v.  Harrison,  90  N.  C.  385. 

At  least  there  is  no  presumption  that  he  did  not  leave  heirs.  Ham- 
mond's Lessee  v.  Inloes,  4  Md.  138;  Emerson  v.  White,  29  N.  H.  482. 


§   72  PARENT  AND  CHILD.  301 

trary,  that  an  infant  is  under  the  parental  control.     Emancipa- 
tion must  accordingly  be  proved  by  the  person  asserting  it.889 

§  72.    Advancements. 

It  is  presumed  that  a  voluntary  transfer  by  a  parent  to  a 
child  is  intended  as  an  advancement  to  enable  him  to  anticipate 
his  inheritance  ;687  and  the  same  presumption  arises  where  a 
parent  purchases  property  in  the  name  of  the  child,688  or  in- 
sures his  own  life  in  the  child's  name,  or  in  his  own  name  and 

«86  Fitzwilliam  v.  Troy,  6  N.  H.  166. 

«87Fennell  v.  Henry,  70  Ala.  484,  45  A.  R.  88;  Hatch  v.  Straight,  3 
Conn.  31,  8  A.  D.  152;  Grattan  v.  Grattan,  18  111.  167,  65  A.  D.  726;  Scott 
v.  Harris,  127  Ind.  520;  Gulp  v.  Wilson,  133  Ind.  294;  Finch  v.  Garrett, 
102  Iowa,  381;  Hattersley  v.  Bissett,  51  N.  J.  Eq.  597,  40  A.  S.  R.  532. 

The  presumption  applies  where  the  parent  gives  money  to  the  child. 
Higham  v.  Vanosdol,  125  Ind.  74;  St.  Louis  Trust  Co.  v.  Rudolph,  136 
Mo.  169;  Weaver's  Appeal,  63  Pa.  309.  The  presumption  may  arise 
also  where  a  father  conveys  property  to  his  daughter's  husband.  It 
is  deemed  an  advancement  to  her.  Stevenson  v.  Martin,  11  Bush 
(Ky.)  485.  And  see  James  v.  James,  41  Ark.  301;  Towles  v.  Round- 
tree,  10  Fla.  299;  Baker  v.  Leathers,  3  Ind.  558;  Haglar  v.  McCombs, 
66  N.  C.  345,  350.  Contra,  Rains  v.  Hays,  6  Lea  (Tenn.)  303,  40  A. 
R.  39. 

The  presumption  does  not  arise  where  the  transfer  takes  the  form 
of  a  conveyance  for  full  value.  Miller's  Appeal,  107  Pa.  221. 

«88Bogy  v.  Roberts,  48  Ark.  17,  3  A.  S.  R.  211;  Higham  v.  Vanosdol, 
125  Ind.  74;  Lisloff  v.  Hart,  25  Miss.  245,  57  A.  D.  203;  Creed  v.  Lan- 
caster Bank,  1  Ohio  St.  1;  Phillips  v.  Gregg,  10  Watts  (Pa.)  158,  36 
A.  D.  158;  Kern  v.  Howell,  180  Pa.  315,  57  A.  S.  R.  641;  Dudley  v. 
Bosworth,  10  Humph.  (Tenn.)  9,  51  A.  D.  690;  Smith  v.  Strahan,  16 
Tex.  314,  67  A.  D.  622. 

It  has  been  held  that  this  presumption  does  not  apply  to  a  purchase 
so  made  by  a  mother,  since  she  is  not  regarded  as  being  under  any 
obligation  to  make  provision  for  her  children.  Bennet  v.  Bennet,  10 
Ch.  Div.  474. 

Where  a  life  tenant  whose  children  are  the  remaindermen  buys  In 
the  estate  at  a  trust-deed  sale,  the  presumption  is  that  he  does  so  by 
way  of  advancement,  and  the  remainder  does  not  vest  in  him  absolute- 
ly. Allen  v.  De  Groodt,  98  Mo.  159,  14  A.  S.  R.  626. 


302  LAW   OF  EVIDENCE.  §  73 

assigns  the  policy  to  the  child,689  or  pays  a  debt  due  from  the 
child  to  a  third  person.690  The  presumption  does  not  arise, 
however,  where  an  evidence  of  indebtedness  is  given  by  the 
child  or  preserved  by  the  parent;691  nor  where,  at  the  time 
of  the  transfer,  the  parent  was  indebted  to  the  child;692  and 
money  expended  by  the  parent  to  educate  the  child  is  not  pre- 
sumed to  be  an  advancement.693 

The  presumption  in  favor  of  advancements  is  not  conclusive, 
but  rebuttable.694 

§  73.    Services  and  support. 

If  goods  are  furnished  or  services  are  performed,  though 
without  previous  order,  and  they  are  accepted,  a  presumption 
is  said  to  arise,  ordinarily,  that  the  beneficiary  intended  to  pay 
for  them.695  The  relationship  existing  between  the  parties  is 

esa  Cazassa  v.  Cazassa,  92  Tenn.  573,  36  A.  S.  R.  112. 

eao  Johnson  v.  Hoyle,  3  Head   (Tenn.)  56. 

eaiFennell  v.  Henry,  70  Ala.  484,  45  A.  R.  88;  Cutliff  v.-Boyd,  72  Ga. 
302;  Harley  v.  Harley,  57  Md.  340;  Miller's  Appeal,  40  Pa.  57,  80  A. 
D.  555. 

It  is  competent  to  show  that  an  advancement  was  nevertheless  in- 
tended. Cutliff  v.  Boyd,  supra. 

692  Haglar  v.  McCombs,  66  N.  C.  345. 

An  intention  to  make  an  advancement  under  these  circumstances 
may  nevertheless  be  shown.  Haglar  v.  McCombs,  supra. 

693Fennell  v.  Henry,  70  Ala.  484,  45  A.  R.  88  (statute);  Miller's  Ap- 
peal, 40  Pa.  57,  80  A.  D.  555;  White  v.  Moore,  23  S.  C.  456. 

69*Fennell  v.  Henry,  70  Ala.  484,  45  A.  R.  88;  Hatch  v.  Straight,  3 
Conn.  31,  8  A.  D.  152;  Bay  v.  Cook,  31  111.  336;  Hall  v.  Hall,  107  Mo. 
101;  Hattersley  v.  Bissett,  51  N.  J.  Eq.  597,  40  A.  S.  R.  532;  Jackson 
v.  Matsdorf,  11  Johns.  (N.  Y.)  91,  6  A.  D.  355;  Creed  v.  Lancaster  Bank, 
1  Ohio  St.  1;  Dudley  v.  Bosworth,  10  Humph.  (Tenn.)  9,  51  A.  D.  690; 
Johnson  v.  Hoyle,  3  Head  (Tenn.)  56;  Smith  v.  Strahan,  16  Tex.  314, 
€7  A.  D.  622;  Watkins  v.  Young,  31  Grat.  (Va.)  84. 

695  This  is  nothing  but  a  rule  of  substantive  law.  In  other  words, 
the  rendition  and  acceptance  of  services,  or  the  furnishing  of  goods, 
creates  an  implied  contract  to  pay  for  them.  Hammon,  Cont.  §§  48-57; 


g  73  PARENT  AND  CHILD.  303 

an  important  factor  in  determining  whether  a  contract  may 
be  so  implied  to  pay  for  services  rendered  or  support  furnished. 
As  between  parent  and  child,  a  contract  to  pay  for  the  bene- 
fits received  will  not  ordinarily  be  implied ;  they  are  presumed 
to  have  been  conferred  gratuitously.696  The  same  is  true  where 
the  parties,  though  not  in  fact  such,  stand  in  the  relation  of 
parent  and  child.897  The  rule  is  also  applied  as  between  more 
distant  relatives,898  and  in  many  courts  even  as  between  per- 
sons not  related,699  where  they,  occupy  the  position  of  members 
of  the  same  family,  and  the  benefits  for  which  a  recovery  is 
sought  relate  to  the  family  connection.  It  should  be  borne  in 
mind,  however,  that  the  presumption  against  the  existence  of 

Kinney  v.  S.  &  N.  A.  R.  Co.,  82  Ala.  368;  Day  v.  Caton,  119  Mass.  513, 
20  A.  R.  347;  McClary  v.  Mich.  Cent.  R.  Co.,  102  Mich.  312;  Rosen- 
field  v.  Swenson,  45  Minn.  190;  Ind.  Mfg.  Co.  v.  Hayes,  155  Pa.  160. 

e»»  Cohen  v.  Cohen's  Ex'r,  2  Mackey  (D.  C.)  227;  Bradley  v.  Kent's 
Ex'r,  7  Houst.  (Del.)  372;  Hudson  v.  Hudson,  90  Ga.  581;  Cowan  v. 
Musgrave,  73  Iowa,  384;  Perry  v.  Perry,  2  Duv.  (Ky.)  312;  Bantz  v. 
Bantz,  52  Md.  686;  Howe  v.  North,  69  Mich.  272;  Erhart  v.  Dietrich, 
118  Mo.  418;  Kloke  v.  Martin,  55  Neb.  554;  Hey  wood  v.  Brooks,  47 
N.  H.  231;  Young  v.  Herman,  97  N.  C.  280;  Houck's  Ex'rs  v.  Houck, 
•99  Pa.  552;  Hatch  v.  Hatch's  Estate,  60  Vt.  160;  Andrus  v.  Foster,  17 
Vt.  556;  Pellage  v.  Pellage,  32  Wis,  136;  Long,  Dom.  Rel.  325. 

«»TLarsen  v.  Hansen,  74  Cal.  320;  Stock  v.  Stoltz,  137  111.  349;  King's 
Adm'r  v.  Kelly,  28  Ind.  89;  Wyley  v.  Bull,  41  Kan.  206;  Harris  v.  Smith, 
79  Mich.  54;  Gillett  v.  Camp,  27  Mo.  541;  Williams  v.  Hutchinson,  3  N. 
Y.  312,  53  A.  D.  301;  Hudson  v.  Lutz,  50  N.  C.  (5  Jones)  217;  Ormsby 
v.  Rhoades,  59  Vt  505;  Ellis  v.  Gary,  74  Wis.  176,  17  A.  S.  R.  125. 

ess  Davies  v.  Davies,  9  Car.  &  P.  87 ;  State  v.  Connoway,  2  Houst. 
(Del.)  206;  Heffron  v.  Brown,  155  111.  322;  Oxford  v.  McFarland,  3  Ind. 
156;  Weir  v.  Weir's  Adm'r,  3  B.  Mon.  (Ky.)  645,  39  A.  D.  487;  Shep- 
herd v.  Young,  8  Gray  (Mass.)  152,  69  A.  D.  242;  Collyer  v.  Collyer, 
113  N.  Y.  442;  Wilkes  v.  Cornelius,  21  Or.  341;  Hall  v.  Finch,  29  Wis. 
278,  9  A.  R.  559. 

«»9  Collar  v.  Patterson,  137  111.  403;  Medsker  v.  Richardson,  72  Ind. 
323;  Windland  v.  Deeds,  44  Iowa,  98;  Cooper  v.  Cooper,  147  Mass. 
370,  9  A.  S.  R.  721;  Feiertag  v.  Feiertag,  73  Mich.  297;  Schaedel  v.  Rei- 
bolt,  33  N.  J.  Eq.  534;  Gerz  v.  Weber,  151  Pa.  396;  Schrimpf  v.  Sett* 
gast,  36  Tex.  296. 


304  LAW   OF  EVIDENCE.  g   74 

a  contract  in  these  cases  is  not  conclusive.  It  may  be  rebutted 
by  evidence  of  circumstances  showing  that  the  parties  mutually 
intended  that  compensation  should  be  made.700 

R.  PAYMENT. 

§  74.  Payment  is  an  affirmative  defense,  and  the  burden  of 
proving  it  lies  on  the  defendant.701  The  defendant  is  some- 

700  Morton  v.  Rainey,  82  111.  215,  25  A.  R.  311;   Huffman  v.  Wyrick,. 
5  Ind.  App.  183;  Thurston  v.  Perry,  130  Mass.  240;   Donahue  v.  Dona- 
hue, 53  Minn.  460;  Kloke  v.  Martin,  55  Neb.  554;  Ulrich  v.  Ulrich,  136- 
N.  Y.  120,  18  L.  R.  A.  37;  Briggs  v.  Briggs'  Estate,  46  Vt.  571. 

701  UNITED  STATES:     Simonton  v.  Winter,  5  Pet.  141,  149. 
ALABAMA:     Sampson  v.  Fox,  109  Ala.  662,  55  A.  S.  R.  950;  Brown  v. 

Scott,  87  Ala.  453. 

ARKANSAS:     Caldwell  v.  Hall,  49  Ark.  508,  4  A.  S.  R.  64. 

COLOBADO:  Lovelock  v.  Gregg,  14  Colo.  53;  Perot  v.  Cooper,  17  Colo. 
80,  31  A.  S.  R.  258. 

ILLINOIS:     De  Land  v.  Dixon  Nat.  Bank,  111  111.  323. 

INDIANA:     Kent  v.  White,  27  Ind.  390. 

KANSAS:  First  Nat.  Bank  v.  Hellyer,  53  Kan.  695,  42  A.  S.  R.  316; 
Guttermann  v.  Schroeder,  40  Kan.  507. 

KENTUCKY:  Harris  v.  Merz  A.  I.  Works,  82  Ky.  200;  Powell  v.  Swan's. 
Adm'r,  5  Dana,  1. 

LOUISIANA:     Gernon  v.  McCan,  23  La.  Ann.  84. 

MICHIGAN:  Thatcher  v.  Hayes,  54  Mich.  184;  Smith's  Appeal,  52 
Mich.  415. 

NEBRASKA:     Tootle  v.  Maben,  21  Neb.  617. 

NEW  HAMPSHIRE:     Kendall  v.  Brownson,  47  N.  H.  186. 

PENNSYLVANIA:     North  Pa.  R.  Co.  v.  Adams,  54  Pa.  94,  93  A.  D.  677. 

TENNESSEE:  Mason  v.  Spurlock,  4  Baxt.  554;  Ins.  Co.  v.  Dunscombr 
108  Tenn.  724,  91  A.  S.  R.  769. 

UTAH:     McCornick  v.  Sadler,  11  Utah,  444. 

VERMONT:     Terryberry  v.  Woods,  69  Vt.  94. 

WISCONSIN:     Knapp  v.  Runals,  37  Wis.  135. 

And  see  Woodson  Mach.  Co.  v.  Morse,  47  Kan.  429;  Hutchins  v.  Ham- 
ilton, 34  Tex.  290.  See,  however,  Lent  v.  N.  Y.  &  M.  R.  Co.,  130  N.  Y. 
504.  And  see,  generally,  6  Current  Law,  992. 

If,  however,  a  regular  course  of  dealing  between  a  master  and  servant 
is  proved,  by  which  the  servant,  without  taking  a  receipt,  customarily 
paid  over  to  the  master  funds  received  to  his  use,  the  burden  is  on  the 


§  75a  PAYMENT.  305 

times  relieved  from  this  burden,  however,  by  the  operation  of 
certain  presumptions. 

§  75.    Lapse  of  time. 

(a)  General  rule.  Whether  a  debt  rests  upon  a  record,  a  writ- 
ing under  seal,  a  parol  writing,  or  mere  word  of  mouth,  pay- 
ment of  the  demand  is  presumed,  at  common  law,  by  courts 
of  common-law  as  well  as  those  of  equitable  jurisdiction,  from 
the  lapse  of  twenty  years  from  the  time  of  its  maturity,  if  the 
debtor  has  not,  in  the  meantime,  recognized  the  debt  as  a  valid 
and  subsisting  obligation,  and  the  creditor's  long  delay  before 
attempting  to  enforce  the  demand  is  not  explained.702  Unlike 

master,  in  an  action  for  money  received,  to  show  that  the  particular 
sums  demanded  were  not  paid  over  to  him.  Evans  v.  Birch,  3  Camp.  10. 

In  California,  if  the  maker  of  a  note  denies  nonpayment,  the  plain- 
tiff must  produce  the  note  or  account  for  its  absence,  else  the  burden 
of  showing  nonpayment  is  on  him.  Turner  v.  Turner,  79  Cal.  565. 

If  money  is  delivered  to  one  person  to  be  applied  to  the  use  of  an- 
other, and  the  depositor  afterwards  sues  the  mandatary  to  recover  it 
back,  the  burden  of  proof  is  on  the  latter  to  show  that  he  had  applied 
the  fund  as  directed  before  the  order  was  countermanded.  Thweatt  v. 
McCullough,  84  Ala.  517,  5  A.  S.  R.  391. 

If  the  debtor  pays  to  one  other  than  the  creditor,  the  burden  is  on 
him,  as  against  the  creditor,  to  show  authority  on  the  part  of  the  payee 
to  receive  the  money.  Lehman  v.  McQueen,  65  Ala.  570. 

702Coleman  v.  Lane,  26  Ga.  515;  Kingsland  v.  Roberts,  2  Paige  (N. 
Y.)  193. 

Bond.  Oswald  v.  Legh,  1  Term  R.  270;  Miller  v.  Evans,  2  Cranch, 
C.  C.  72,  Fed.  Cas.  No.  9,569;  Harrison  v.  Haplin,  54  Ala.  552;  Durham 
v.  Greenly,  2  Har.  (Del.)  124;  Boyd  v.  Harris,  2  Md.  Ch.  210;  Rogers 
v.  Bishop,  5  Blackf.  (Ind.)  108;  Smith's  Ex'r  v.  Benton,  15  Mo.  371; 
Buchannan  v.  Rowland,  5  N.  J.  Law,  721;  Lash  v.  Von  Neida,  109  Pa. 
207;  Langston  v.  Shands,  23  S.  C.  149;  Booker's  Adm'r  v.  Booker's  Rep., 
29  Grat.  (Va.)  605,  26  A.  R.  401;  Norwell  v.  Little,  79  Va.  141;  Hale  v. 
Pack's  Ex'rs,  10  W.  Va.  145. 

Corporate  subscription.  Semple  v.  Glenn,  91  Ala.  245,  24  A.  S.  R. 
894. 

Judgment.     Gaines  v.  Miller,  111  U.  S.  395,  399;   Barber  v.  Interna- 

Hammon,  Ev. — 20. 


306  LAW    OF   EVIDENCE.  §   75a 

the  statute  of  limitations,  the  presumption  of  payment  applies 

tional  Co.,  74  Conn.  652,  92  A.  S.  R.  246;  Boardman  v.  De  Forest,  5 
Conn.  1;  Morrow  v.  Robinson,  4  Del.  Ch.  521;  Farmers'  Bank  v.  Leon- 
ard, 4  Har.  (Del.)  536;  Burt  v.  Casey,  10  Ga.  178;  Gulick  v.  Loder,  13 
N.  J.  Law,  68,  23  A.  D.  711;  Bird's  Adm'r  v.  Inslee's  Ex'rs,  23  N.  J.  Eq. 
363;  Miller  v.  Smith's  Ex'rs,  16  Wend.  (N.  Y.)  425;  Beekman  v.  Hamlin, 
19  Or.  383,  20  A.  S.  R.  827;  Hummel  v.  Lilly,  188  Pa.  463,  68  A.  S.  R. 
879;  Breneman's  Appeal,  121  Pa.  641;  Kinsler  v.  Holmes,  2  Rich.  (S.  C.) 
483. 

• 

Land  contract  debt.  McCormick  v.  Evans,  33  111.  327;  Morrison  v. 
Funk,  23  Pa.  421.  On  an  issue  whether  a  grantee  purchased  for  value, 
the  presumption  of  payment  operates  in  aid  of  a  receipt  of  the  grantor 
that  the  price  has  been  paid.  Pryor  v.  Wood,  31  Pa.  142. 

Legacy.  Greenlees  v.  Greenlees,  62  Ala.  330;  Bonner  v.  Young,  68 
Ala.  35;  Wooten  v.  Harrison,  9  La.  Ann.  234;  Andrews  v.  Sparhawk,  13 
Pick.  (Mass.)  393;  Hayes  v.  Whitall,  13  N.  J.  Eq.  241;  Cox  v.  Brower, 
114  N.  C.  422;  Foulk  v.  Brown,  2  Watts  (Pa.)  209.  And  see  Hooper  v. 
Howell,  52  Ga.  315.  Contra,  Main  v.  Brown,  72  Tex.  505,  13  A.  S.  R.  823. 

Mortgage  debt.  Sweetser  v.  Lowell,  33  Me.  446;  Jarvis  v.  Albro,  67 
Me.  310;  Kellogg  v.  Dickinson,  147  Mass.  432,  1  L.  R.  A.  346;  Rowland 
v.  Shurtleff,  2  Mete.  (Mass.)  26,  35  A.  D.  384;  Tripe  v.  Marcy,  39  N.  H. 
439,  448;  Downs  v.  Sooy,  28  N.  J.  Eq.  55;  Olden  v.  Hubbard,  34  N.  J. 
Eq.  85;  Jackson  v.  Wood,  12  Johns.  (N.  Y.)  242,  7  A.  D.  315;  Agnew 
v.  Renwick,  27  S.  C.  562;  King  v.  King,  90  Va.  177;  Bowie  v.  Poor 
School  Soc.,  75  Va.  300;  Criss  v.  Criss,  28  W.  Va.  388. 

Note.  Daggett  v.  Tallman,  8  Conn.  168;  Clark  v.  Clement,  33  N.  H. 
563;  Boyce  v.  Lake,  17  S.  C.  481,  43  A.  R.  618;"  White  v.  Moore,  23  S.  C. 
456. 

Recognisance.  Ankeny  v.  Penrose,  18  Pa.  190;  Gregory  v.  Com.,  121 
Pa.  611,  6  A.  S.  R.  804. 

Rent.  Lyon  v.  Odell,  65  N.  Y.  28;  Bailey  v.  Jackson,  16  Johns.  (N.  Y.) 
210,  8  A.  D.  309.  Nonpayment  of  rent  for  twenty  years  does  not,  how- 
ever, raise  a  presumption  that  the  covenant  to  pay  rent  has  been  re- 
leased and  discharged.  Lyon  v.  Odell,  65  N.  Y.  28. 

Trust.  Philippi  v.  Philippe,  115  U.  S.  151;  McCarthy  v.  McCarthy,  74 
Ala.  546.  And  see  Prevost  v.  Gratz,  6  Wheat.  (U.  S.)  481;  Drysdale's 
Appeal,  14  Pa.  531;  Webb  v.  Dean,  21  Pa.  29;  Strimpfler  v.  Roberts,  18 
Pa.  283,  57  A.  D.  606.  Contra,  Williams  v.  Williams,  82  Wis.  393.  Pre- 
sumption of  conveyance  by  trustee  to  beneficiary,  see  page  348,  infra. 

The  presumption  may  arise,  also,  where  the  debt  is  payable  in  prop- 
erty. Philips  v.  Morrison,  3  Bibb  (Ky.)  105,  6  A.  D.  638. 

The  presumption  operates  in  favor  of  the  debtor,  whether  he  alleges 


§  75b  PAYMENT.  307 

against  the  state,  the  same  as  against  individual  creditors.703 
The  presumption  applies  not  only  in  favor  of  the  debtor,  but 
also  in  favor  of  his  creditors;704  and,  on  the  other  hand,  it  ap- 
plies not  only  against  the  holder  of  the  obligation,  but  also 
against  his  creditors.705 

(b)  Period  of  delay.  In  the  absence  of  statute  to  the  con- 
trary, the  presumption  of  payment  does  not  arise  from  mere 
lapse  of  time,  unless  the  full  period  of  twenty  years  has  ex- 
pired, so  that  if  suit  is  brought  on  the  debt  within  that  period 
the  burden  of  proof  as  to  payment  rests  on  the  debtor.700  In 
combination  with  other  circumstances,  however,  lapse  of  time 

payment  generally  or  payment  by  the  giving  of  a  negotiable  instrument. 
Manning  v.  Meredith,  69  Iowa,  430. 

It  has  been  doubted  that  lapse  of  time  may  raise  a  presumption  of 
payment  by  way  of  set-off.  Adair  v.  Adair,  5  Mich.  204,  71  A.  D.  779, 
784. 

It  has  been  held  that  the  presumption  of  payment  arising  from  mere 
lapse  of  time  may  be  used  only  as  a  shield,  and  not  as  a  weapon  of  at- 
tack, so  that  a  party  asking  affirmative  equitable  relief  on  the  ground 
that  he  has  paid  a  debt  must  establish  the  fact  of  payment  by  affirma- 
tive evidence,  mere  lapse  of  time  being  insufficient.  Morey  v.  Farmers' 
L.  &  T.  Co.,  14  N.  Y.  302;  Allen  v.  Everly,  24  Ohio  St.  97. 

Length  of  time  may  be  set  up  to  show  that  no  debt  ever  existed  as 
well  as  to  show  payment.  Christophers  v.  Sparke,  2  Jac.  &  W.  223; 
Wanmaker  v.  Van  Buskirk,  1  N.  J.  Eq.  685,  23  A.  D.  748. 

703  in  re  Ash's  Estate,  202  Pa.  422,  90  A.  S.  R.  658. 

This  is  true  in  collateral  proceedings  between  individuals.  Andover 
v.  Merrimack  County,  37  N.  H.  437;  Elliott  v.  Williamson,  11  Lea 
(Tenn.)  38. 

TO*  Van  Loon  v.  Smith,  103  Pa.  238. 

705  Semple  v.  Glenn,  91  Ala.  245,  24  A.  S.  R.  894. 

7ooColsell  v.  Budd,  1  Camp.  27;  Phillips  v.  Adams,  78  Ala.  225;  Cottle 
v.  Payne,  3  Day  (Conn.)  289;  Stockton's  Adm'r  v.  Johnson,  6  B.  Mon. 
(Ky.)  408;  Thayer  v.  Mowry,  36  Me.  287;  West  v.  Brison,  99  Mo.  684; 
Gould  v.  White,  26  N.  H.  178;  Daby  v.  Ericsson,  45  N.  Y.  786;  Morrison 
v.  Collins,  127  Pa.  28,  14  A.  S.  R.  827;  Murphy  v.  Phila.  Trust  Co.,  103 
Pa.  379;  Henderson  v.  Lewis,  9  Serg.  &  R.  (Pa.)  379,  11  A.  D.  733; 
Smithpeter  v.  Ison's  Adm'rs,  4  Rich.  Law  (S.  C.)  203,  53  A.  D.  732; 
Norvell  v.  Little,  79  Va.  141;  Calwell's  Ex'r  v.  Prindle's  Adm'r.  19  W. 


308  LAW    OF   EVIDENCE. 

for  a  less  period  than  twenty  years  from  the  time  the  debt 
matured  may  justify  an  inference  of  payment.707  The  quantity 
of  evidence  required  to  justify  this  inference,  where  the  lapse 
of  time  has  not  reached  twenty  years,  depends  in  a  measure 
upon  the  extent  to  which  that  time  has  elapsed.  If  but  a  few 
years  have  gone  by  since  the  debt  matured,  the  additional  cir- 
cumstances tending  to  show  payment  must  be  cogent  and  sat- 
isfactory. On  the  other  hand,  if  the  twenty  years  has  well 

Va.  604;  Sadler's  Adm'r  v.  Kennedy's  Adm'x,  11  W.  Va.  187.  See,  how- 
ever, Jackson  v.  Sackett,  7  Wend.  (N.  Y.)  94. 

In  some  states,  and  in  reference  to  some  debts,  the  lapse  of  a  less 
time  than  twenty  years  gives  rise  to  the  presumption  of  law.  Didlake 
v.  Robb,  1  Woods,  680,  Fed.  Gas.  No.  3,899;  Rector  v.  Morehouse,  17 
Ark.  131;  Woodruff  v.  Sanders,  15  Ark.  143;  Clark's  Ex'rs  v.  Hopkins,  7 
Johns.  (N.  Y.)  556;  Hall  v.  Gibbs,  87  N.  C.  4;  Long  v.  Clegg,  94  N.  C. 
763;  Rogers  v.  Clements,  98  N.  C.  180;  Smith  v.  Niagara  F.  Ins.  Co.,  60 
Vt.  682,  6  A.  S.  R.  144  (semble).  And  see  Wood  v.  Egan,  39  La.  Ann. 
684.  In  Tennessee,  a  presumption  of  fact  may  arise  from  mere  lapse 
of  time  alone,  where  sixteen  years  have  expired;  that  is,  where  that 
time  has  expired,  the  jury  may  infer  payment.  Blackburn  v.  Squib, 
Peck  (Tenn.)  59;  Atkinson  v.  Dance,  9  Yerg.  (Tenn.)  424,  30  A.  D.  422; 
Kilpatrick  v.  Brashear,  10  Heisk.  (Tenn.)  372. 

The  twenty  years'  period  does  not  begin  to  run  until  the  maturity  of 
the  obligation.  Tripe  v.  Marcy,  39  N.  H.  439,  449;  Smith  v.  Niagara  F. 
Ins.  Co.,  60  Vt.  682,  6  A.  S.  R.  144.  And  see  page  312,  infra.  But  if 
a  debt  is  due  in  installments,  the  twenty  years'  period  commences 
to  run  as  to  each  instalment  as  it  falls  due.  State  v.  Lobb's  Adm'r,  3 
Har.  (Del.)  421. 

A  presumption  of  payment  to  heirs  does  not  arise  in  favor  of  an  ad- 
ministrator who  owes  the  estate  individually  until  twenty  years  have 
elapsed  from  the  passing  of  a  decree  of  distribution.  Potter  v.  Titcomb, 
7  Me.  302. 

TOT  Denniston  v.  McKeen,  2  McLean,  253,  Fed.  Gas.  No.  3,803;  Fleming 
v.  Rothwell,  5  Har.  (Del.)  46;  Gamier  v.  Renner,  51  Ind.  372;  Long  v. 
Straus,  124  Ind.  84;  West  v.  Brison,  99  Mo.  684;  Gould  v.  White,  26  N. 
H.  178;  Briggs'  Appeal,  93  Pa.  485;  Brubaker's  Adm'r  v.  Taylor,  76  Pa. 
83;  Moore  v.  Smith,  81  Pa.  182;  Kinsler  v.  Holmes,  2  Rich.  (S.  C.)  483, 
496;  Blake's  Ex'rs  v.  Quash's  Ex'rs,  3  McCord  (S.  C.)  340;  Norvell  v. 
Little,  79  Va.  141;  Sadler's  Adm'r  v.  Kennedy's  Adm'x,  11  W.  Va.  187; 
Calwell's  Ex'r  v.  Prindle's  Adm'r,  19  W.  Va.  604. 


§  75c  PAYMENT.  309 

nigh  expired,  payment  may  be  inferred  from  this  and  addi- 
tional circumstances  of  slight  weight.708  The  character  of 
these  circumstances  the  law  does  not  attempt  to  define.  Each 
case  depends  upon  its  own  peculiar  facts,  and  the  question  of 
payment  under  the  evidence  is  one  of  fact,  unaffected  by  any 
presumption  of  law.709  The  fact  that  the  creditor  is  ordinarily 
strict  in  the  collection  of  his  debts ;  that  he  has  been  in  needy 
circumstances  during  the  delay;  that  the  debtor  is  ordinarily 
prompt  in  his  payments;  that  he  has  been  solvent  during  the 
delay, — these  things,  collectively  or  in  various  combinations, 
taken  in  connection  with  a  delay  of  less  than  twenty  years,  are 
examples  of  what  may  be  regarded  as  sufficient  to  justify  an 
inference  that  the  debt  has  been  paid.710 

(c)  Rebuttal.  The  presumption  of  payment  arising  from 
lapse  of  twenty  years  is  not  conclusive,  but  disputable.  Its 
effect,  and  its  only  effect,  is  to  make  a  prima  facie  case  in 
favor  of  the  debtor  as  to  the  fact  of  payment,  and  to  cast  on 
the  creditor  the  burden  of  showing  the  contrary.711  The  quan- 
gos King's  Ex'r  v.  Coulter's  Ex'r,  2  Grant  Cas.  (Pa.)  77;  Hughes  v. 
Hughes,  54  Pa.  240. 

IDS  Long  v.  Straus,  124  Ind.  84;  Henderson  v.  Lewis,  9  Serg.  &  R. 
(Pa.)  379,  11  A.  D.  733;  Diamond  v.  Tobias,  12  Pa.  312. 

710  May  v.  Wilkinson,  76  Ala.  543;    Phillips  v.  Adams,  78  Ala.  225; 
Milledge  v.  Gardner,  33  Ga.  397;  Morrison  v.  Collins,  127  Pa.  28,  14  A. 
S.  R.  827;   Hughes  v.  Hughes,  54  Pa.  240;   Leiper  v.  Erwin,  5  Yerg. 
(Tenn.)  97;  Husky  v.  Maples,  2  Cold.  (Tenn.)  25,  88  A.  D.  588;  Bender 
v.  Montgomery,  8  Lea  (Tenn.)  586  (semble). 

The  single  circumstance  that  the  debtor  has  been  continuously  sol- 
vent will  not  justify  an  inference  of  payment  if  twenty  years  has 
not  elapsed.  Daby  v.  Ericsson,  45  N.  Y.  786;  Morrison  v.  Collins,  127 
t'a.  28,  14  A.  S.  R.  827. 

The  creditor's  need  of  money,  and  the  debtor's  ability  to  pay,  coupled 
with  a  lapse  of  sixteen  years  without  demand  of  payment,  do  not 
Justify  an  inference  of  payment,  where  the  creditor  still  has  possession 
of  the  evidence  of  indebtedness.  Smithpeter  v.  Ison's  Adm'rs,  4  Rich. 
Law  (S.  C.)  203,  53  A.  D.  732. 

711  Hurt  v.  Casey,  10  Ga.  178:  Helm's  Ex'rs  v.  Jones'  Adm'x,  3  Dana 


310  LAW    OF   EVIDENCE.  §   75c 

tity  of  evidence  required  to  overcome  the  presumption  is  not 
fixed  by  law.  It  varies  with  the  particular  case.  Generally 
speaking,  the  evidence  must  be  clear  and  convincing,  and  suffi- 
cient to  satisfy  the  jury  that  the  debt  has  not  been  paid.712 

It  has  been  held  that,  to  rebut  the  presumption,  the  creditor 
must  prove  such  facts  as  are  required  to  take  a  case  out  of 
the  operation  of  the  statute  of  limitations;713  that  is  to  say, 
the  creditor  must  show  that  within  twenty  years  of  bringing 
suit  the  debtor  promised  to  pay  the  debt,  or  either  acknowl- 
edged it  as  a  valid  and  subsisting  obligation  or  paid  something 
on  account  of  it,  under  circumstances  consistent  with  an  in- 
tention subsequently  to  discharge  the  debt  or  the  balance  due. 
By  the  weight  of  authority,  however,  this  rule  does  not  pre- 
vail. While  it  is  true  that  the  presumption  is  rebutted  by 
an  acknowledgment,714  or  a  part  payment,715  or  a  new  prom- 

(Ky.)  86;  Jarvis  v.  Albro,  67  Me.  310;  Sweetser  v.  Lowell,  33  Me.  446; 
Baent  v.  Kennicutt,  57  Mich.  268;  Lewis  v.  Schwenn,  93  Mo.  26,  3  A.  S. 
R.  511;  Barker  v.  Jones,  62  N.  H.  497,  13  A.  S.  R.  586;  Hayes  v.  Whitall, 
13  N.  J.  Eq.  241;  Ankeny  v.  Penrose,  18  Pa.  190;  Morrison  v.  Funk,  23 
Pa.  421;  Burnside  v.  Donnon,  34  S.  C.  289;  Norvell  v.  Little,  79  Va.  141. 
Contra,  Didlake  v.  Robb,  1  Woods,  680,  Fed.  Cas.  No.  3,899. 

7i2Cowie  v.  Fisher,  45  Mich.  629;  Jackson  v.  Wood,  12  Johns.  (N.  Y.) 
242,  7  A.  D.  315;  Lowe  v.  Lowell,  49  N.  C.  (4  Jones)  235;  Gregory  v. 
Com.,  121  Pa.  611,  6  A.  S.  R.  804. 

713  Latimer  v.  Trowbridge,  52  S.  C.  193,  68  A.  S.  R.  893;  Boyce  v.  Lake, 
17  S.  C.  481,  43  A.  R.  618;  Stover  v.  Duren,  3  Strob.  (S.  C.)  448,  51  A.  D. 
634. 

The  presumption  can  be  rebutted  only  by  some  positive  act  of  un- 
equivocal recognition  of  the  debt  by  the  debtor  within  the  twenty 
years'  period.  Cheever  v.  Perley,  11  Allen  (Mass.)  584;  Lyon  v.  Adde, 
63  Barb.  (N.  Y.)  89;  Beekman  v.  Hamlin,  19  Or.  383,  20  A.  S.  R.  827. 

7i4Werborn  v.  Austin,  82  Ala.  498;  Abbott  v.  Godfrey's  Heirs,  1 
Mich.  178;  Murphy  v.  Coates,  33  N.  J.  Eq.  424;  Tucker  v.  Baker,  94  N. 
C.  162;  Bissell  v.  Jaudon,  16  Ohio  St.  498;  Breneman's  Appeal,  121  Pa. 
641;  McQueen  v.  Fletcher,  4  Rich.  Eq.  (S.  C.)  152;  Fisher  v.  Phillips,  4 
Baxt.  (Tenn.)  243. 

An  admission  sufficient  to  rebut  the  presumption  may  be  made  either 


§  75C  PAYMENT.  3H 

ise,710  if  made  within  the  twenty  years'  period,  yet  these  are 
not  the  only  facts  that  will  repel  it.  On  the  contrary,  the 

to  the  creditor,  to  his  agent,  or  to  a  third  person.  Burton  v.  Cannon, 
5  Har.  (Del.)  13;  Gregory  v.  Com.,  121  Pa.  611,  6  A.  S.  R.  804.  An  ad- 
mission will  not  be  as  readily  implied  from  language  casually  addressed 
to  a  stranger  as  when  addressed  to  the  creditor  in  reply  to  a  demand  for 
the  debt,  however.  Gregory  v.  Com.,  supra. 

If  the  state  is  the  debtor,  an  acknowledgment  sufficient  to  rebut  the 
presumption  may  be  made  by  a  proper  state  officer.  Jackson  v.  Pierce, 
10  Johns.  (N.  Y.)  414. 

An  admission  of  the  deceased  debtor's  administrator  that  he  himself 
had  not  paid  the  debt  does  not  rebut  the  presumption  where  the  ad- 
ministration did  not  extend  over  the  full  period  necessary  to  found  the 
presumption.  Grant  v.  Gooch,  105  N.  C.  278.  Nor  does  an  acknowl- 
edgment of  the  debt  made  by  the  personal  representative  of  the  de- 
ceased debtor  rebut  the  presumption  as  against  a  surety  of  the  debtor. 
Harrison  v.  Heflin.  54  Ala.  552. 

Acknowledgment-  by  an  heir  of  the  deceased  debtor  does  not  rebut 
the  presumption  as  against  the  decedent's  estate.  Blake's  Ex'rs  v. 
Quash's  Ex'rs,  3  McCord  (S.  C.)  340. 

An  admission  of  nonpayment  dispels  the  presumption,  even  though 
it  was  accompanied  by  the  expression  of  a  purpose  not  to  pay.  Greg- 
ory's Ex'rs  v.  Com.,  121  Pa.  611,  6  A.  S.  R.  804.  The  rule  as  to  this  is 
otherwise  in  South  Carolina,  where  the  presumption  can  be  defeated 
only  by  proof  of  such  facts  as  would  take  a  case  out  of  the  statute  of 
limitations.  Stover  v.  Duren,  3  Strob.  (S.  C.)  448,  51  A.  D.  634.  See 
page  310,  supra. 

It  has  been  held  that  a  mere  acknowledgment  that  the  debt  has  not 
been  paid,  if  made  after  the  lapse  of  twenty  years  from  the  time  the 
debt  matured,  is  not  sufficient  to  rebut  the  presumption  of  payment. 
Stover  v.  Duren,  3  Strob.  (S.  C.)  448,  51  A.  D.  634.  The  rule  is  other- 
wise, however,  if  the  acknowledgment  is  made  before  the  lapse  of 
twenty  years  from  tHe  time  that  the  debt  matures,  and  within  twenty 
years  from  the  time  suit  is  brought.  Roberts  v.  Smith,  21  S.  C.  455. 

TIB  Burton  v.  Cannon,  5  Har.  (Del.)  13;  Bissell  v.  Jaudon,  16  Ohio  St. 
498;  Hale  v.  Pack's  Ex'rs,  10  W.  Va.  145,  152  (semble). 

Part  payment  by  the  debtor's  personal  representative  within  the 
twenty  years'  period  destroys  the  presumption  of  payment.  Girard  v. 
Futterer,  84  Ala.  323.  Contra,  Didlake  v.  Robb,  1  Woods,  680,  Fed.  Gas. 
No.  3,899.  And  the  same  is  true  of  a  part  payment  made  by  the  debt- 
or's assignee  in  bankruptcy.  Belo  v.  Spach,  85  N.  C.  122.  Part  payment 


312  LAW   OP   EVIDENCE.  g   75c 

presumption  is  dispelled,  not  only  by  these  facts,  but  also  by 
any  others  which  tend  to  show  that  the  debt  is  in  fact  un- 
paid.717 

Among  the  various  facts  which  have  been  held  to  explain 
away  the  presumption  may  be  mentioned  the  fact  that  the 
creditor  has  extended  the  time  of  payment,  and  that  twenty 

by  heirs  or  devisees  of  the  deceased  debtor  does  not  destroy  the  pre- 
eumption  of  payment  arising'  in  favor  of  his  estate,  however.  Gibson 
v.  Lowndes,  28  S.  C.  285. 

Part  payment  by  one  of  several  joint  and  several  debtors  rebuts  the 
presumption  as  against  all.  Hall  v.  Woodward,  26  S.  C.  557;  Dickson  v. 
Gourdin,  29  S.  C.  343.  If,  however,  a  joint  and  several  debtor  dies,  the 
obligation  is  severed,  and  subsequent  part  payments  by  the  survivor  do 
Qot  keep  the  debt  alive  as  against  the  estate  of  the  decedent.  Shubrick 
v.  Adams,  20  S.  C.  49.  And  see  Langston  v.  Shands,  23  S.  C.  149. 

Credits  indorsed  on  a  bond  are  not  evidence  of  actual  payments  with- 
out a  showing  that  they  were  so  indorsed  within  the  twenty  years' 
period.  Runner's  Appeal,  121  Pa.  649.  This  fact  being  shown,  indorse- 
ments of  credits  are  evidence  of  payments.  White  v.  Beaman,  96  N.  C. 
122.  An  indorsement  of  credit  by  work  done  does  not  defeat  the  pre- 
sumption, however,  unless  made  with  the  debtor's  privity.  Kirkpat- 
rick's  Ex'r  v.  Langphier,  1  Cranch,  C.  C.  85,  Fed.  Gas.  No.  7,849. 

If  twenty  years  has  elapsed  since  a  part  payment  was  made,  the  pre- 
sumption of  payment  arises  the  same  as  if  no  part  payment  had  been 
made.  Courtney  v.  Staudenmeyer,  56  Kan.  392,  54  A.  S.  R.  592. 

TIB  Tucker  v.  Baker,  94  N.  C.  162. 

TiTHopkirk  v.  Page,  2  Brock.  20,  Fed.  Gas.  No.  6,697;  Shields  v. 
Pringle,  2  Bibb  (Ky.)  387;  Abbott  v.  Godfrey's  Heirs,  1  Mich.  178; 
Grantham  v.  Canaan,  38  N.  H.  268;  Clark  v.  Clement,  33  N.  H.  563; 
Long  v.  Clegg,  94  N.  C.  763;  Allen  v.  Everly,  24  Ohio  St.  97;  Reed  v. 
Reed,  46  Pa.  239;  Gregory's  Ex'rs  v.  Com.,  121  Pa.  611,  6  A.  S.  R.  804; 
Elliott  v.  Williamson,  11  Lea  (Tenn.)  38;  Bowie  v.  Poor  School-  Soc., 
75  Va.  300;  Jameson  v.  Rixey,  94  Va.  342,  64  A.  S.  R.  726;  Hale  v. 
Pack's  Ex'rs,  10  W.  Va.  145;  Criss  v.  Criss,  28  W.  Va.  388. 

The  evidence  of  nonpayment  relied  on  in  rebuttal  must  in  many  cases 
be  directed  to  the  entire  period  of  the  lapse  of  time,  else  it  will  not 
defeat  the  presumption.  Rowland  v.  Windley,  86  N.  C.  36. 

The  fact  that  the  creditor  has  possession  of  the  evidence  of  indebted- 
ness may  rebut  the  presumption  of  payment.  Ins.  Co.  v.  Dunscomb,  108 
Tenn.  724,  91  A.  S.  R.  769.  See  §  89 (a),  infra. 


§   75C  PAYMENT.  313 

years  has  not  elapsed  since  the  debt  matured;718  the  fact  that 
some  legal  impediment  has  existed  during  a  part  of  the  twenty 
years  to  prevent  the  creditor  from  enforcing  his  claim;719  the 

"8  Hale  v.  Pack's  Ex'rs,  10  W.  Va.  145. 

7i»Crooker  v.  Crocker,  49  Me.  416;  Criss  v.  Criss,  28  W.  Va.  388. 

Alienage  and  war.  Dunlop  v.  Ball,  2  Cranch  (U.  S.)  184;  Bailey  v. 
Jackson,  16  Johns.  (N.  Y.)  210,  8  A.  D.  309. 

War  interrupting  courts.  McLellan  v.  Crofton,  6  Me.  307,  334  (spm- 
ble);  Bender  v.  Montgomery,  8  Lea  (Tenn.)  586;  Hale  v.  Pack's  Ex'rs, 
10  W.  Va.  145.  However,  the  period  of  the  existence  of  a  stay  law  in 
the  state  of  the  forum  during  the  Civil  War  is  not  to  be  deducted  from 
the  twenty  years'  period,  so  as  to  defeat  the  presumption  of  payment. 
Harrison  v.  Heflin,  54  Ala.  552;  Shubrick  v.  Adams,  20  S.  C.  49;  Boyce 
v.  Lake,  17  S.  C.  481,  43  A.  R.  618;  Kilpatrick  v.  Brashear,  10  Heisk. 
(Tenn.)  372.  Contra,  Gwyn  v.  Porter,  5  Heisk.  (Tenn.)  253.  And  see 
Penrose  v.  King,  1  Yeates  (Pa.)  344. 

The  rule  in  regard  to  the  statute  of  limitations,  that  when  time  has 
begun  to  run  it  suffers  no  interruption  from  an  intervening  disability, 
does  not  apply  to  the  presumption  of  payment  under  discussion.  Ab- 
bott v.  Godfrey's  Heirs,  1  Mich.  178  (semble);  Bailey  v.  Jackson,  16 
Johns.  (N.  Y.)  210,  8  A.  D.  309;  Foulk  v.  Brown,  2  Watts  (Pa.)  209 
(semble).  Contra,  Semple  v.  Glenn,  91  Ala.  245,  24  A.  S.  R.  894,  903 
(semble) ;  Shubrick  v.  Adams,  20  S.  C.  49. 

The  presumption  is  not  rebutted  by  the  fact  that  a  preliminary  in- 
junction issued  against  the  creditor  on  a  bill  to  set  aside  a  judgment 
obtained  on  his  claim,  where  he  did  not  answer  the  bill  nor  move  to 
dissolve  the  injunction  for  more  than  twenty  years  after.  Buchannan 
v.  Rowland,  5  N.  J.  Law,  721. 

The  imprisonment  of  either  party  during  the  twenty  years'  period, 
or  a  part  of  it,  does  not  rebut  the  presumption  of  payment  unless,  per- 
haps, the  circumstances  of  the  imprisonment  were  such  as  to  prevent 
the  institution  or  prosecution  of  a  suit.  Rogers  v.  Judd,  5  Vt.  236,  26 
A.  D.  301. 

Infancy,  coverture,  or  lunacy  of  the  creditor  during  a  part  of  the 
twenty  years'  period  does  not  rebut  the  presumption.  McCartney's 
Adm'r  v.  Bone,  40  Ala.  533;  Boyce  v.  Lake,  17  S.  C.  481,  43  A.  R.  618. 
However  this  may  be  in  New  Hampshire,  if  the  creditor  is  under  age 
when  the  debt  matures,  and  twenty  years  subsequently  elapse,  it  seems 
that  payment  will  be  presumed  in  five  years  after  he  attains  his  ma- 
jority. Bartlett  v.  Bartlett,  9  N.  H.  398. 

Povertv  of  the  creditor  does  not  defeat  the  presumption  unless  it  is 


314  LAW   OF   EVIDENCE.  §   75e 

fact  that  the  debtor  has  been  absent  from  the  state,720  or  that 
his  residence  was  unknown  to  the  creditor,721  during  a  portion 
of  the  twenty  years '  period ;  the  fact  that  the  debtor  has  been 
insolvent  during  the  greater  part  of  the  twenty  years,722  or 

such  as  to  deprive  him  of  all  power  to  sue  during  the  twenty  years,  or 
the  greater  portion  of  that  time.  Rogers  v.  Judd,  5  Vt.  236,  26  A.  D. 
301.  Poverty  of  debtor,  see  note  722,  infra. 

The  time  elapsing  between  the  death  of  the  creditor  and  the  appoint- 
ment of  an  administrator  of  his  estate  is  not  to  be  deducted  from  the 
twenty  years'  period  (Cox  v.  Brower,  114  N.  C.  422;  Foulk  v.  Brown,  2 
Watts  [Pa.]  20'9),  unless  the  debtor  shows  that  the  debt  matured  be- 
fore the  creditor  died  (Abbott  v.  Godfrey's  Heirs,  1  Mich.  178  [semble]). 
The  time  is  to  be  deducted,  however,  which  elapses  between  the  death 
of  the  debtor  and  the  appointment  of  an  administrator  of  his  estate, 
since  in  that  time  there  is  no  one  against  whom  suit  may  be  brought. 
Buie  v.  Buie,  24  N.  C.  (2  Ired.)  87. 

720  Brobst  v.  Brock,  10  Wall.   (U.  S.)  519;  Boardman  v.  De  Forest,  5 
Conn.  1;  Daggett  v.  Tallman,  8  Conn.  168;  McLellan  v.  Crofton,  6  Me. 
307,  334  (semble) ;  Latimer  v.  Trowbridge,  52  S.  C.  193,  68  A.  S.  R.  893; 
Hale  v.  Pack's  Ex'rs,  10  W.  Va.  145,  152  (semble).    On  the  contrary,  it 
has  been  held  that  the  presumption  of  payment  arises  even  though, 
because  of  the  nonresidence  and  absence  of  the  debtor,  the  statute  of 
limitations  has  not  run  against  the  debt.     Courtney  v.  Staudenmayer, 
56  Kan.  392,  54  A.  S.  R.  592;  Bean  v.  Tonnele,  94  N.  Y.  381,  46  A.  R.  153; 
Alston  v.  Hawkins,  105  N.  C.  3,  18  A.  S.  R.  874. 

Occasional  absence  of  the  debtor  does  not  rebut  the  presumption. 
Nor  does  the  absence  of  one  of  two  joint  debtors.  Boardman  v.  De 
Forest,  5  Conn.  1. 

Absence  of  the  creditor  does  not  rebut  the  presumption.  Cox  v. 
Brower,  114  N.  C.  422.  Contra,  Shields  v.  Pringle,  2  Bibb  (Ky.)  387. 

721  Bailey  v.  Jackson,  16  Johns.  (N.  Y.)  210,  8  A.  D.  309. 
722Fladong  v.  Winter,  19  Ves.  196;  Brobst  v.  Brock,  10  Wall.  (U.  S.) 

519;  Boardman  v.  De  Forest,  5  Conn.  1;  Farmers'  Bank  v.  Leonard,  4 
Har.  (Del.)  536;  Knight  v.  Macomber,  55  Me.  132;  Brantham  v.  Canaan, 
38  N.  H.  268,  270;  Wood  v.  Deen,  23  N.  C.  (1  Ired.)  230;  Tucker  v. 
Baker,  94  N.  C.  162;  Ins.  Co.  v.  Dunscomb,  108  Tenn.  724,  91  A.  S.  R. 
769;  Black  v.  Carpenter,  3  Baxt.  (Tenn.)  350;  Hale  v.  Pack's  Ex'rs,  10 
W.  Va.  145,  152  (semble).  Contra,  Rogers  v.  Judd,  5  Vt.  236,  26  A.  D. 
301. 

In  North  Carolina,  insolvency,  to  rebut  the  presumption,  must  have 
existed  during  the  entire  period  of  delay  after  the  maturity  of  the  debt. 


g  75c  PAYMENT.  315 

that  he  is  a  relative  of  the  creditor,  and  that  an  earlier  enforce- 
ment of  the  claim  would  have  distressed  him;723  and  the  fact 
that  the  creditor  has  demanded  the  debt,724  or  sued  upon  it,725 
within  the  twenty  years'  period,  and  prosecuted  his  claim  with 
reasonable  diligence.726  If  these  facts,  or  any 'of  them,  be 
shown,  the  presumption  'of  payment  vanishes,  and  the  question 
of  payment  is  one  for  the  jury  upon  .all  the  evidence.727 

Alston  v.  Hawkins,  105  N.  C.  3,  18  A.  S.  R.  874.  A  short  interval  of 
solvency  of  which  the  creditor  was  ignorant  does  not  save  the  pre- 
sumption, however.  McKinder  v.  Littlejohn,  26  N.  C.  (4  Ired.)  198. 

The  presumption  is  not  rebutted  by  showing  the  debtor's  inability  to 
pay  all  his  debts  during  the  period  of  delay,  if  he  was  able  to  pay  the 
debt  in  question.  State  v.  Wright,  47  N.  C.  (2  Jones)  155. 

The  insolvency  of  one  of  two  joint  debtors  does  not  rebut  the  pre- 
sumption. Boardman  v.  De  Forest,  5  Conn.  1. 

723  Wanmaker  v.  Van  B askirk,  1  N.  J.  Eq.  685,  23  A.  D.  748. 

724  Shields  v.  Pringle,  2  Bibb    (Ky.)   387,  388   (semble) ;   Wanmaker 
v.  Van  Buskirk,  1  N.  J.  Eq.  685,  23  A.  D.  748  (semble). 

725  Semple  v.  Glenn,  91  Ala.  245,  24  A.  S.  R.  894,  904  (semble) ;  Foulk 
v.  Brown,  2  Watts   (Pa.)   209;   Bender  v.  Montgomery,  8  Lea  (Tenn.) 
586. 

A  judgment  obtained  against  one  obligor  on  a  joint  and  several 
obligation  does  not  rebut  the  presumption  of  payment  which  may  have 
arisen  in  favor  of  the  other  obligor.  Rogers  v.  Clements,  98  N.  C.  180. 
And  see  Langston  v.  Shands,  23  S.  C.  149;  Hall  v.  Woodward,  26  S.  C. 
557. 

726  The  institution  or  pendency  of  suit  during  the  twenty  years'  pe- 
riod, or  a  portion  of  it,  does  not  defeat  the  presumption,  where  the 
creditor  fails  to  prosecute  the  suit.     Van  Loon  v.  Smith,  103  Pa.  238; 
Biddle  v.  Girard  Nat.  Bank,  109  Pa.  349;  Palmer's  Ex'r  v.  Dubois'  Adm'r, 
1  Const.  (S.  C.)  178;  Ldngston  v.  Shands,  23  S.  C.  149;  Rogers  v.  Judd, 
5  Vt.  236,  26  A.  D.  301. 

The  presumption  of  payment  of  a  subscription  to  corporate  stock  is 
not  rebutted  by  the  fact  that,  within  the  twenty  years'  period,  the  court 
in  which  a  creditor's  bill  had  been  filed  against  the  corporation  issued 
an  order  for  a  call,  where  the  call  was  not  attempted  to  be  enforced 
by  suit.  Semple  v.  Glenn,  91  Ala.  245,  24  A.  S.  R.  894. 

727  Grantham  v.  Canaan,  38  N.  H.  268.     See  page  62,  supra. 

In  some  states  it  Is  held  that  whether  the  evidence  adduced  in  re- 
buttal is  true  is  a  question  for  the  jury;  and  whether,  if  true,  It  Is 


316  LAW   OF   EVIDENCE.  §   76a 

§  76.    Payment  by  negotiable  instrument. 

(a)  Instrument  of  debtor.  If  a  debtor  gives  a  bill,  note, 
check,  or  other  negotiable  instrument  to  the  creditor  in  pay- 
ment of  a  sum  due,  he  may  be  discharged  from  his  original 
obligation  either  absolutely  or  conditionally.  If  a  creditor, 
in  consideration  of  a  negotiable  instrument  given  him  by  the 
debtor,  agrees,  either  expressly  or  impliedly,  to  discharge  the 
latter  absolutely  from  the  original  obligation,  all  his  rights 
are  merged  in  the  new  contract,  and,  if  it  is  not  paid  when 
due,  his  only  remedy  is  upon  it ;  he  cannot  revert  to  the  original 
contract.728  In  the  absence  of  an  agreement,  express  or  im- 
plied, to  discharge  the  debtor  absolutely,  a  presumption  arises, 
where  a  negotiable  instrument  is  accepted  in  lieu  of  a  money 
payment,  that  the  parties  intended  it  to  be  only  a  conditional 
discharge ;  so  that,  if  the  instrument  is  not  paid  when  due,  the 
creditor's  original  rights  are  restored  to  him,  and  he  may  en- 
force the  original  contract.729  And  this  presumption  arises, 

sufficient  to  rebut  the  presumption  is  a  question  for  the  court.  Greg- 
ory's Ex'rs  v.  Com.,  121  Pa.  611,  6  A.  S.  R.  804.  And  see  Alston  v. 
Hawkins,  105  N.  C.  3,  18  A.  S.  R.  874;  Reed  v.  Reed,  46  Pa.  239.  Contra, 
Philips  v.  Morrison,  3  Bibb  (Ky.)  105,  6  A.  D.  638.  Where  evidence  has 
been  introduced  to  rebut  the  presumption,  the  question  of  payment  is 
therefore  one  of  law  and  fact.  Lewis  v.  Schwenn,  93  Mo.  26,  3  A.  S.  R. 
511.  And  see  Jackson  v.  Sackett,  7  Wend.  (N.  Y.)  94.  In  some  early 
cases  the  presumption  of  payment  has  been  held  to  be  one  of  fact 
merely.  In  this  view,  it  is  a  question  for  the  jury  whether  the  pre- 
sumption shall  be  drawn.  Stover  v.  Duren,  3  Strob.  (S.  C.)  448,  51 
A.  D.  634. 

728  Sard  v.  Rhodes,  1  Mees.  &  W.  153;  McLellan  v.  Crofton,  6  Me.  307. 
The  same  is  true  where  the  creditor  accepts  the  note  of  a  third  per- 
son in  satisfaction  of  the  debt.     Booth  v.  Smith,  3  Wend.  (N.  Y.)  66. 

729  ENGLAND:     Sayer  v.  Wagstaff,  5  Beav.  423;   Robinson  v.  Read,  9 
Barn.  &  C.  449,  455. 

UNITED  STATES:     The  Kimball,  3  Wall.  37. 
ARKANSAS:     Akin  v.  Peters,  45  Ark.  313. 
CALIFORNIA:     Brown  v.  Olmsted,  50  Cal.  162. 


§  76a  PAYMENT.  317 

whether  the  debt  is  a  pre-existing  one,  or  a  debt  first  contract- 
ed at  the  time  the  instrument  is  given.  The  fact  that  the  con- 
sideration for  the  negotiable  obligation  is  a  contemporaneous 

ILLINOIS:  Cheltenham  S.  &  G.  Co.  v.  Gates  Iron  Works,  124  111.  623; 
Hoodless  v.  Reid,  112  111.  105;  Lochenmeyer  v.  Fogarty,  112  111.  572. 

MABYLAND:     Wyman  v.  Rae,  11  Gill  &  J.  416,  37  A.  D.  70. 

MICHIGAN:     Case  v.  Seass,  44  Mich.  195. 

MISSOURI:     McMurray  v.  Taylor,  30  Mo.  263,  77  A.  D.  611. 

NEW  HAMPSHIRE:     Weymouth  v.  Sanborn,  43  N.  H.  171,  80  A.  D.  144. 

NEW  YORK:  Feldman  v.  Beier,  78  N.  Y.  293;  Vail  v.  Foster,  4  N.  Y. 
312. 

OHIO:     Emerine  v.  O'Brien,  36  Ohio  St.  491. 

OREGON:     Johnston  v.  Barrills,  27  Or.  251,  50  A.  S.  R.  717. 

PENNSYLVANIA:  Del.  County  T.,  S.  D.  &  T.  Ins.  Co.  v.  Haser,  199  Pa. 
17,  85  A.  S.  R.  763. 

RHODE  ISLAND:     Nightingale  v.  Chafee,  11  R.  I.  609,  23  A.  R.  531. 

SOUTH  DAKOTA:     Baker  v.  Baker,  2  S.  D.  261,  39  A.  S.  R.  776. 

TEXAS:     McGuire  v.  Bidwell,  64  Tex.  43. 

VIRGINIA:     Moses  v.  Trice,  21  Grat.  556,  8  A.  R.  609. 

WISCONSIN:  Blunt  v.  Walker,  11  Wis.  334,  78  A.  D.  709;  First  Nat. 
Bank  v.  Case,  63  Wis.  504;  Ford  v.  Mitchell,  15  Wis.  304,  308  (semble). 

Contra,  Smith  v.  Bettger,  68  Ind.  254,  34  A.  R.  256;  Paine  v.  Dwinel, 
53  Me.  52,  87  A.  D.  533;  Ward  v.  Bourne,  56  Me.  161;  Shumway  v.  Reed, 
34  Me.  560,  56  A.  D.  679;  Dodge  v.  Emerson,  131  Mass.  467;  Wait  v. 
Brewster,  31  Vt.  516;  Hutchins  v.  Olcutt,  4  Vt.  549,  24  A.  D.  634;  Mehl- 
berg  v.  Tisher,  24  Wis.  607. 

Even  in  those  states  where  a  view  contrary  to  the  text  prevails,  pay- 
ment is  not  presumed  from  the  acceptance  of  a  negotiable  note  for  an 
antecedent  debt,  if  such  debt  is  secured  by  mortgage  or  otherwise. 
Reeder  v.  Nay,  95  Ind.  164;  Bunker  v.  Barren,  79  Me.  62,  1  A.  S.  R. 
282;  Shumway  v.  Reed,  34  Me.  560,  56  A.  D.  679.  And  the  presumption 
of  absolute  payment  doe's  not  arise  so  as  to  defeat  a  vendor's  right  of 
stoppage  in  transitu,  where  he  tenders  the  note  to  the  maker  in  court. 
Brewer  Lumber  Co.  v.  B.  &  A.  R.  Co.,  179  Mass.  228,  88  A.  S.  R.  375. 
And  in  any  event,  the  presumption  of  absolute  payment  obtaining  in 
these  states  is  rebuttable.  Bunker  v.  Barren,  79  Me.  62,  1  A.  S.  R.  282; 
Perrin  v.  Keene,  19  Me.  355,  36  A.  D.  759;  Melledge  v.  Boston  Iron  Co., 
5  Cush.  (Mass.)  158,  51  A.  D.  59;  Brewer  Lumber  Co.  v.  B.  &  A.  R. 
Co.,  179  Mass.  228,  88  A.  S.  R.  375. 

Taking  a  note  from  one  of  several  joint  debtors  does  not  create  a 
presumption  of  payment.  Tyner  v.  Stoops,  11  Ind.  22,  71  A.  D.  341; 


318  LAW   OF   EVIDENCE.  §   76a 

one  does  not  defeat  the  presumption.730  The  presumption  of 
conditional  payment  is  rebuttable,  however,  and  it  obtains  only 
where  there  is  no  evidence  of  an  agreement  concerning  the 
effect  of  the  payment.  If  there  is  any  evidence  on  the  ques- 
tion, it  is  for  the  jury.731 

All  this  applies  to  checks.  In  the  absence  of  an  agreement 
to  the  contrary,732  the  giving  of  a  check  is  not  payment  until 
the  money  is  received  upon  it,  or  until  it  is  accepted  by  the 
bank  on  which  it  is  drawn.733 

In  re  Davis'  Estate,  5  Whart.  (Pa.)  530,  34  A.  D.  574;  Hoeflinger  v. 
Wells,  47  Wis.  628  (semble). 

Whether  the  payment  by  note  of  the  debtor  or  of  a  third  person  be 
regarded  as  absolute  or  conditional,  the  creditor's  remedy  is  thereby 
suspended  until  the  note  matures.  Mitchell  v.  Hockett,  25  Cal.  538,  85 
A.  D.  151;  Yates  v.  Donaldson,  5  Md.  389,  61  A.  D.  283.  If  the  note  is 
only  a  conditional  payment,  however,  the  creditor  may  file  a  mechanic's 
lien  on  account  of  the  debt  before  the  note  matures.  McMurray  v. 
Taylor,  30  Mo.  263,  77  A.  D.  611. 

730  Devlin  v.  Chamblin,  6  Minn.  468   (Gil.  325);   Ford  v.  Mitchell,  15 
Wis.  304,  308  (semble). 

The  presumption  is  that  a  draft  issued  by  a  bank  to  the  debtor  in 
the  creditor's  name,  and  accepted  by  the  creditor  for  a  contempora- 
neously contracted  debt,  is  taken  in  absolute  payment.  Hall  v.  Stevens, 
116  N.  Y.  201. 

731  Cheltenham  S.  &  G.  Co.  v.  Gates  Iron  Works,  124  111.  623;  Hall  v. 
Stevens,  116  N.  Y.  201;  Briggs  v.  Holmes,  118  Pa.  283,  4  A.  S.  R.  597; 
Andrews  v.  German  Nat.  Bank,  9  Heisk.  (Tenn.)  211,  24  A.  R.  300. 

732Tayloe  v.  Merchants'  F.  Ins.  Co.,  9  How.  (U.  S.)  390;  Comptoir 
D'Escompte  de  Paris  v.  Dresbach,  78  Cal.  15;  Strong  v.  King,  35  111.  1, 
85  A.  D.  336. 

733  Henry  v.  Conley,  48  Ark.  267;  Steinhart  v.  Nat.  Bank,  94  Cal.  362, 
28  A.  S.  R.  132;  Koones  v.  D.  C.,  4  Mackey  (D.  C.)  339,  54  A.  R.  278; 
Pritchard  v.  Smith,  77  Ga.  463;  Strong  v.  King,  35  111.  1,  85  A.  D.  336; 
Burrows  v.  State,  137  Ind.  474,  45  A.  S.  R.  210;  Nat.  Bank  v.  C.,  B.  &  N. 
R.  Co.,  44  Minn.  224,  20  A.  S.  R.  566;  Johnson-Brinkman  Commission 
Co.  v.  Cent.  Bank,  116  Mo.  558,  38  A.  S.  R.  615;  Barnet  v.  Smith,  30 
N.  H.  256,  64  A.  D.  290;  Thomas  v.  Westchester  County  Sup'rs,  115  N. 
Y.  47. 

This  is  true  as  a  rule,  even  though  the  check  is  certified.     The  pre- 


§  76b  PAYMENT.  319 

(b)  Instrument  of  third  person.  Even  in  those  jurisdictions 
where  the  presumption  of  conditional  payment  obtains  it 
does  not  apply  in  all  cases  where  the  negotiable  instrument 
taken  by  the  creditor  is  not  that  of  the  debtor,  but  that  of  a 
third  person.  A  distinction  is  to  be  noted  here  between  pre- 
existing debts  and  contemporaneous  debts, — debts  that  were 
contracted  before  the  instrument  was  given,  and  debts  con- 
tracted at  the  time  of  that  event.  If  a  negotiable  obligation 
of  a  third  person  is  taken  for  a  contemporaneous  debt, — that 
is  to  say,  for  a  debt  then  first  springing  into  existence, — the 
presumption  is  that  there  was  a  barter  or  exchange  of  prop- 
erty, and  accordingly  the  instrument  is  regarded  as  absolute 
payment,734  unless  evidence  to  the  contrary  is  adduced.735  On 
the  other  hand,  if  the  debt  for  which  a  third  person's  negoti- 

sumption  of  conditional  payment  nevertheless  arises.  Larsen  v.  Breene, 
12  Colo.  480;  Bickford  v.  First  Nat.  Bank,  42  111.  238,  89  A.  D. 
436;  Born  v.  First  Nat.  Bank,  123  Ind.  78,  18  A.  S.  R.  312;  Mut. 
Nat.  Bank  v.  Rotge,  28  La.  Ann.  933,  26  A.  R.  126;  Minot  v.  Russ, 
156  Mass.  458,  32  A.  S.  R.  472;  Cincinnati  O.  &  F.  Co.  v.  Nat.  Lafayette 
Bank,  51  Ohio  St.  106,  46  A.  S.  R.  560;  Andrews  v.  German  Nat.  Bank, 
9  Heisk.  (Tenn.)  211,  24  A.  R.  300.  The  rule  is  otherwise,  however, 
where  the  holder  of  the  check  himself  procures  it  to  be  certified.  In 
this  event  the  drawer  is  discharged  from  the  debt  for  which  the  check 
was  given.  Metropolitan  Nat.  Bank  v.  Jones,  137  111.  634,  31  A.  S.  R. 
403;  Born  v.  First  Nat.  Bank,  123  Ind.  78,  18  A.  S.  R.  312;  Minot  v. 
Russ.  156  Mass.  458,  32  A.  S.  R.  472;  First  Nat.  Bank  v.  'Leach,  52  N.  Y. 
350,  11  A.  R.  708;  French  v.  Irwin,  4  Baxt.  (Tenn.)  401,  27  A.  R.  769. 

734  Devlin  v.  Chamblin,  6  Minn.  468  (Gil.  325);  Whitbeck  v.  Van 
Ness,  11  Johns.  (N.  Y.)-  409,  6  A.  D.  383;  Noel  v.  Murray,  13  N.  Y.  167; 
Gibson  v.  Tobey,  46  N.  Y.  637,  7  A.  R.  397;  Bayard  v.  Shunk,  1 
Watts  &  S.  (Pa.)  92,  37  A.  D.  441;  Ford  v.  Mitchell,  15  Wis.  304,  308 
(semble).  See,  however,  Hoeflinger  v.  Wells,  47  Wis.  628. 

The  presumption  of  absolute  payment  does  not  arise  where  a  vendor 
of  real  property  who  takes  a  third  person's  note  at  the  time  of  sale  does 
not  convey  the  legal  title.  Mansfield  v.  Dameron,  42  W.  Va.  794,  57 
A.  S.  R.  884. 

If  an  agent  buys  property  for  his  principal,  and  draws  on  him  at 
sight  for  the  price,  and  transfers  the  draft  to  the  seller,  it  does  not 


320  LAW    OF   EVIDENCE.  §  76b 

able  obligation  is  given  is  a  pre-existing  debt, — that  is  to  say, 
if  it  was  contracted  before  the  taking  of  the  instrument, — then 
the  presumption  first  mentioned,  that  the  payment  is  only  con- 
ditional, obtains,736  subject  to  be  defeated  by  evidence  to  the 
contrary.737  However,  as  has  been  said,  these  presumptions 
are  not  conclusive.  The  question  depends  primarily  upon  the 
intent  of  the  parties.738 

presumptively  constitute  payment  of  the  principal's  debt  for  the  prop- 
erty. Taylor  v.  Conner,  41  Miss.  722,  97  A.  D.  419. 

735  Devlin  v.  Chamblin,  6  Minn.  468   (Gil.  325). 

736Caldwell  v.  Hall,  49  Ark.  508,  4  A.  S.  R.  64;  Mitchell  v.  Hockett, 
25  Cal.  538,  85  A.  D.  151;  Tyner  v.  Stoops,  11  Ind.  22,  71  A.  D.  341; 
Berry  v.  Griffin,  10  Md.  27,  69  A.  D.  123;  Devlin  v.  Chamblin,  6  Minn. 
468  (Gil.  325);  Whitbeck  v.  Van  Ness,  11  Johns.  (N.  Y.)  409,  6  A.  D. 
383;  Shepherd  v.  Busch,  154  Pa.  149,  35  A.  S.  R.  815;  Holmes  v.  Briggs, 
131  Pa.  233,  17  A.  S.  R.  804;  Barelli  v.  Brown,  1  McCord  (S.  C.)  449, 
10  A.  D.  683;  Ford  v.  Mitchell,  15  Wis.  304,  308  (semble). 

The  debt  is  not  discharged  by  payment  by  the  check  or  draft  of  a 
third  person  erroneously  supposed  by  both  debtor  and  creditor  to  be 
good.  Weaver  v.  Nixon,  69  Ga.  699;  Weddigen  v.  Boston  Elastic  Fabric 
Co.,  100'Mass.  422;  Felig  v.  Sleet,  43  Ohio  St.  51,  54  A.  R.  800.  If,  how- 
ever, the  debtor  sends  the  creditor  a  draft  of  one  third  person  on  an- 
other, and,  on  maturity  of  the  draft,  the  creditor  surrenders  it  to  the 
drawee  in  exchange  for  his  check,  without  giving  notice  of  nonpayment, 
it  constitutes  payment  of  the  debt.  Whitney  v.  Esson,  99  Mass.  308,  96 
A.  D.  762. 

In  some  states,  as  has  been  seen  (note  729,  supra),  the  presump- 
tion is  that  a  simple  contract  debt  is  discharged  by  the  taking  of 
a  negotiable  instrument.  In  Indiana  and  Vermont  this  presumption 
arises  even  where  the  debt  is  a  pre-existing  one,  and  the  note  is  that  of 
a  third  person.  Smith  v.  Bettger,  68  Ind.  254,  34  A.  R.  256;  Wemet 
v.  Missisquoi  Lime  Co.,  46  Vt.  458.  In  Massachusetts,  however,  if  the 
presumption  arises  at  all  under  such  circumstances,  it  is  of  little  weight. 
Melledge  v.  Boston  Iron  Co.,  5  Cush.  (Mass.)  158,  51  A.  D.  59. 

737  Devlin  v.  Chamblin,  6  Minn.  468   (Gil.  325) ;    Shepherd  v.  Busch, 
154  Pa.  149,  35  A.  S.  R.  815;   Holmes  v.  Briggs,  131  Pa.  233,  17  A.  S. 
R.  804. 

As  to  the  effect  of  the  debtor's  indorsing  the  note  thus  given,  see 
Whitney  v.  Goin,  20  N.  H.  354;  Ford  v.  Mitchell,  15  Wis.  304,  309. 

738  Dup^n  v.  Pac.  Boom  Co.,  6  Wash.  593,  86  A.  S.  R.  182. 


§  77  PAYMENT.  321 

(c)  Accounting  and  settlement.  The  burden  of  proving  an 
accounting  and  settlement  embracing  the  demand  in  suit  rests 
ordinarily  on  the  debtor.739  If,  however,  the  debtor  has  given 
the  creditor  a  note,  it  raises  a  presumption  that  an  account- 
ing and  settlement  was  had  of  all  accounts  theretofore  existing 
between  the  parties,  and  that  the  maker  was  found  to  be  in- 
debted to  the  payee  in  the  amount  of  the  note.740  This  pre- 
sumption is  rebuttable.741 

§  77.    Receipt. 

If  a  creditor  gives  the  debtor  a  receipt,  a  presumption  arises 
that  the  debt  is  paid,  and  the  burden  of  adducing  evidence  to 
the  contrary  is  cast  on  the  creditor.742  This  presumption  is 
disputable.743 


v.  Antiau,  79  Mich.  509;  Hitchcock  v.  Davis,  87  Mich. 
629,  633. 

74oTisdale  v.  Maxwell,  58  Ala.  40;  Copeland  v.  Clark,  2  Ala.  388;  Piper 
v.  Wade,  57  Ga.  223;  Kirchner  v.  Lewis'  Adm'x,  27  Ind.  22;  Long  v. 
Straus,  124  Ind.  84;  Smith  v.  Bissell,  2  G.  Greene  (Iowa)  379;  Green- 
wade  v.  Greenwade,  3  Dana  (Ky.)  495;  Kinman  v.  Cannefax,  34  Mo. 
147;  De  Freest  v.  Bloomingdale,  5  Denio  (N.  Y.)  304;  Lake  v.  Tysen, 
6  N.  Y.  461.  Contra,  Crabtree  v.  Rowand,  33  111.  421;  Ankeny  v.  Pierce, 
Breese  (111.)  289,  12  A.  D.  174. 

A  presumption  of  payment  of  one  note  may  arise  from  the  subse- 
quent giving  of  a  larger  note  by  the  payee  to  the  maker.  French  v. 
French,  84  Iowa,  655,  15  L.  R.  A.  300.  See,  however,  Tisdale  v.  Max- 
well, 58  Ala.  40. 

741  Piper  v.  Wade,  57  Ga.  223;  Kirchner  v.  Lewis'  Adm'x,  27  Ind.  22; 
Smith  v.  Bissell,  2  G.  Greene  (Iowa)  379. 

742  Scruggs  v.  Bibb,  33  Ala.  481;   Wooten  v.  Nail,  18  Ga.  609,  617; 
Marston  v.  Wilcox,  2  111.  270;  Ramsdell  v.  Clark,  20  Mont.  103;  Obart 
v.  Letson,  17  N.  J.  Law,  78,  34  A.  D.  182;  Reid  v.  Reid,  13  N.  C.  (2  Dev.) 
247,  18  A.  D.  570. 

If  a  defendant  pleads  payment,  the  burden  of  proof  is  on  him  to  es- 
tablish it  (section  74,  supra).  This  burden  is  not  shifted  by  the  in- 
troduction of  a  receipt,  since  the  burden  of  proof  never  shifts.  Terry- 
berry  v.  Woods,  69  Vt.  94.  The  effect  of  the  presumption  of  payment 
to  which  the  receipt  gives  rise  is  to  throw  on  the  plaintiff,  not  the  bur- 

Hammon,  Ev.  —  21. 


322  LAW   OF  EVIDENCE.  §  78 

§  78.    Possession  of  obligation. 

If  an  obligation,  whether  for  the  payment  of  money  or  the 
delivery  of  property,  is  evidenced  by  a  writing,  the  fact  that 
the  debtor  has  it  in  his  possession  after  maturity  raises  a  pre- 
sumption that  he  has  paid  it,  and  the  burden  of  adducing  evi- 
dence to  the  contrary  is  accordingly  cast  upon  the  creditor.744 

den  of  proof  in  the  sense  of  burden  of  persuading  the  jury  of  the  fact 
of  payment,  but  the  burden  of  adducing  evidence  in  rebuttal  of  the 
presumption,  either  by  way  of  denying  or  explaining  the  receipt.  See 
§§  2,  4(b),  supra. 

743  Clark  v.  Simmons,  4  Port.  (Ala.)  14;  Comptoir  D'Escompte  de 
Paris  v.  Dresbach,  78  Cal.  15;  Shropshire  v.  Long,  68  Iowa,  537;  Mc- 
Allister v.  Engle,  52  Mich.  56;  Ensign  v.  Webster,  1  Johns.  Cas.  (N.  Y.) 
145,  1  A.  D.  108;  Watson  v.  Elaine,  12  Serg.  &  R.  (Pa.)  131,  14  A.  D.  669. 

7*4  Bond,.     Carroll  v.  Bowie,  7  Gill  (Md.)  34. 

Check.  Peavy  v.  Hovey,  16  Neb.  416.  And  see  Beebe  v.  Real  Estate 
Bank,  4  Ark.  546.  Contra,  Patton  Adm'rs  v.  Ash,  7  Serg.  &  R.  (Pa.) 
116.  The  presumption  does  not  arise  from  a  drawee's  possession  of  a 
check  unless  it  is  indorsed  by  the  payee.  Pickle  v.  Muse,  88  Tenn.  380, 
17  A.  S.  R.  900.  Contra,  Zeigler  v.  Gray,  12  Serg.  &  R.  (Pa.)  42 
(semble). 

Due  bill.     Tedens  v.  Schumers,  112  111.  263. 

Note.  Tuskaloosa  C.  S.  Oil  Co.  v.  Perry,  85  Ala.  158;  Potts  v.  Cole- 
man,  86  Ala.  94;  Hollenberg  v.  Lane,  47  Ark.  394;  Turner  v.  Turner, 
79  Cal.  565;  Sutphen  v.  Cushman,  35  111.  186;  Cassem  v.  Heustis,  201 
111.  208,  94  A.  S.  R.  160;  Dougherty  v.  Deeney,  41  Iowa,  19;  Smith  y. 
Gardner,  36  Neb.  741;  Smith  v.  Smith,  15  N.  H.  55;  Poston  v.  Jones,  122 
N.  C.  536;  Bracken  v.  Miller,  4  Watts  &  S.  (Pa.)  102;  Halfin  v.  Winkle- 
man,  83  Tex.  165.  And  see  Callahan  v.  First  Nat.  Bank,  78  Ky.  604,  39 
A.  R.  262;  Callahan  v.  Bank  of  Ky.,  82  Ky.  231.  Possession  of  a  note 
by  one  of  two  makers  is  prima  facie  evidence  of  payment  by  him  as 
against  the  other  maker.  Waldrip  v.  Black,  74  Cal.  409;  Chandler  v. 
Davis,  47  N.  H.  462.  Contra,  Bates  v.  Cain's  Estate,  70  Vt.  144.  Where 
a  note  payable  to  the  payee  only  has  been  indorsed  to  another,  the 
payee's  possession  of  it  is  prima  facie  evidence  of  payment  by  him  to 
the  indorsee.  Smith  v.  St.  Lawrence,  2  N.  C.  (1  Hayw.)  175,  1  A.  D. 
556.  And  see  Weakly  v.  Bell,  9  Watts  (Pa.)  273,  36  A.  D.  116. 

If  the  drawee  in  an  order  for  the  doing  of  work  or  delivery  of  goods 
or  payment  of  money  has  it  in  his  possession,  the  presumption  is  that 
he  has  paid  it.  Shepherd  v.  Currie,  1  Starkie,  454;  Gibbon  v.  Feather- 


§  79  PAYMENT.  323 

This  presumption  may  be  rebutted  by  evidence  of  nonpay- 
ment,745 and  if  it  is  shown  that  the  debtor  had  access  to  the 
creditor's  papers,  the  presumption  is  repelled.746 

§  79.    Cancellation  of  obligation. 

If  an  obligation  is  evidenced  by  a  writing,  a  cancellation  of 
the  instrument  by  the  creditor,  whether  by  destruction,  mu- 
tilation, or  otherwise,  gives  rise  to  a  presumption  that  the  debt 
has  been  paid  and  discharged,  and  the  burden  of  adducing 
evidence  to  the  contrary  is  cast  on  the  creditor.747  The  pre- 
sumption is  a  rebuttable  one,  and  the  creditor  may  accord- 
ingly show  that  he  canceled  the  obligation  by  accident  or  mis- 
take.748 

stonhaugh,  1  Starkie,  225 ;  Lane  v.  Farmer,  13  Ark.  63 ;  Alvord  v.  Baker, 
9  Wend.  (N.  Y.)  323;  Zeigler  v.  Gray,  12  Serg.  &  R.  (N.  Y.)  42;  Con- 
nelly v.  McKean,  64  Pa.  113;  Hays  v.  Samuels,  55  Tex.  560.  And  see 
Conway  v.  Case,  22  111.  127. 

The  presumption  of  payment  arises  even  where  the  obligation  has 
not  matured,  if  it  has  been  in  circulation.  First  Nat.  Bank  v.  Harris, 
7  Wash.  139. 

Presumption  of  ownership,  and  therefore  of  nonpayment,  arising  from 
the  obligee's  possession  of  the  evidence  of  indebtedness,  see  note  778, 
infra. 

745  Potts  v.  Coleman,  67  Ala.  221;   Excelsior  Mfg.  Co.  v.  Owens,  58 
Ark.  556;  Turner  v.  Turner,  79  Cal.  565;   Sutphen  v.  Cushman,  35  111. 
186;  Smith  v.  Smith,  15  N.  H«.  55;  Garlock  v.  Geortner,  7  Wend.  (N.  Y.) 
198;  Pickle  v.  Muse,  88  Tenn.  380,  17  A.  S.  R.  900;  Halfin  v.  Winkleman, 
83  Tex.  165. 

746  Grimes  v.  Hilliary',  150  111.  141;  Erhart  v.  Dietrich,  118  Mo.  418; 
Grey  v.  Grey,  47  N.  Y.  552. 

747  Pitcher  v.  Patrick's  Adm'rs,  1  Stew.  &  P.    (Ala.)    478.     And  see 
Trenton  Banking  Co.  v.  Woodruff,  2  N.  J.  Eq.  117. 

The  fact  that  the  maker's  name  has  been  torn  off  from  a  note  affords 
a  presumption  of  payment  where,  and  only  where,  the  note  is  in  the 
maker's  possession.  Powell  v.  Swan's  Adm'r,  5  Dana  (Ky.)  1. 

748  pitcher  v.  Patrick's  Adm'rs.  1  Stew.  &  P.    (Ala.)    478.     And  see 
Trenton  Banking  Co.  v.  Woodruff,  2  N.  J.  Eq.  117. 


324  LAW   OP  EVIDENCE.  §  82 

§  80.    Installments. 

If  a  debt  is  payable  in  installments,  evidence  that  one  install- 
ment has  been  paid  gives  rise  to  a  presumption  that  all  pre- 
vious installments  have  been  paid.749  This  presumption  is  re- 
buttable.750 

§  81.    Application  of  payments. 

The  presumption  is  that  payments  made  on  an  account  cur- 
rent are  to  be  applied  in  discharge  of  the  earliest  items  in  the 
account.751  If,  however,  a  part  payment  has  been  made,  and 
there  is  no  evidence  that  only  one  debt  existed  between  the 
parties  at  the  time,  there  is  no  presumption  that  the  payment 
was  to  apply  on  that  particular  debt.752 

§  82.    Time  of  payment. 

If  the  time  of  payment  for  goods  sold  is  not  fixed  by  the 
parties,  the  presumption  is  that  payment  is  to  be  made  upon 
delivery  of  the  goods.753 

749  Brewer  v.  Knapp,  1  Pick.   (Mass.)   332,  336   (semble) ;   Decker  v. 
Livingston,  15  Johns.    (N.  Y.)   479,  483.     See,  also,  Hodgdon  v.  Wight, 
36   Me.    326;    Attleborough   v.   Middleborough,   10   Pick.    (Mass.)    378; 
Elliott  v.  Williamson,  11  Lea  (Tenn.)  38. 

750  Brewer  v.  Knapp,  1   Pick.    (Mass.)    332,   336    (semble);    Ham  v. 
Barret,  28  Mo.  388;   Decker  v.  Livingston,  15  Johns.   (N.  Y.)   479,  483. 
And  see  Hodgdon  v.  Wight,  36  Me.  326;  Attleborough  v.  Middleborough 
10  Pick.  (Mass.)  378;  Robbins  v.  Townsend,  20  Pick.  (Mass.)  345. 

751  Crompton  v.  Pratt.  105  Mass.  255. 

752  Somervail  v.  Gillies,  31  Wis.  152.     See,  however,  Pope  v.  Dodson, 
58  111.  360. 

753  Roberts  v.  Wilcoxson,  36  Ark.  355. 

This  results  from  the  rule  of  substantive  law  that,  where  no  time  is 
set  for  payment  of  the  price,  payment  is  a  condition  precedent  to  the 
right  to  receive  the  goods.  Hammon,  Cont.  §  465;  Bloxam  v.  Sanders, 
4  Barn.  &  C.  941;  Allen  v.  Hartfield,  76  111.  358;  Lester  v.  Jewett,  11 
N.  Y.  453. 


§  85  SANITY.  325 

§  83.    Payment  or  loan. 

If  money  or  money's  worth  is  delivered  by  one  person  to 
another,  the  presumption  is,  in  the  absence  of  an  explanation, 
that  the  transaction  constituted  payment  of  an  antecedent  debt, 
and  not  a  present  loan.754 

§  84.    Payment  or  security. 

If  a  debtor  turns  over  personal  property  to  the  creditor,  the 
presumption  is,  in  the  absence  of  other  evidence  on  the  point, 
that  the  transfer  was  made  as  security,  and  not  as  payment.755 

s.  SANITY. 

§  85.  Sanity  being  the  normal  condition,  it  is  presumed, 
in  the  absence  of  evidence  to  the  contrary,  that  at  a  given  time 
a  given  person  was  sane,  and  the  burden  of  adducing  evidence 
of  mental  unsoundness  is  accordingly  on  the  party  who  de- 
sires to  profit  by  that  abnormal  condition.  This  presumption 
is  one  of  law,  but  it  is  not  conclusive;  evidence  is  admissible 
to  rebut  it.786  And  when  evidence  in  rebuttal  has  been  ad- 
mitted, the  presumption  vanishes,  and  the  question  of  sanity 
is  then  one  for  the  jury  on  all  the  evidence,  regardless  of  any 
presumption.767 

754  Welch  v.  Seaborn,  1  Starkie,  474;  Aubert  v.  Walsh,  4  Taunt.  293; 
Boswell  v.  Smith,  6  Car.  &  P.  60;  Bromwell  v.  Bromwell's  Estate,  139 
111.  424;  Gerding  v.  Walter,  29  Mo.  426;  Patton's  Adm'rs  v.  Ash,  7  Serg. 
&  R.  (Pa.)  116;  Somervail  v.  Gillies,  31  Wis.  152. 

An  order  directing  the  drawee  to  let  the  payee  have  certain  goods  is, 
when  in  the  drawee's  hands,  prima  facie  evidence  of  a  sale  to  the 
drawer.  Alvord  v.  Baker,  9  Wend.  (N.  Y.)  323.  An  order  for  money, 
however,  is  presumed  to  have  been  drawn  against  funds  of  the  drawer 
in  the  drawee's  hands.  Alvord  v.  Baker,  supra;  White  v.  Ambler,  8 
N.  Y.  170. 

755  Borland  v.  Nev.  Bank,  99  Cal.  89,  37  A.  S.  R.  32. 
T66  Davis  v.  U.  S.,  160  U.  S.  469,  486. 

Probative  effect  of  inquisition  of  lunacy,  see  Hammon,  Cont.  §§  188, 
184,  187. 


326  LAW  OF  EVIDENCE.  §  86 

§  86.    Criminal  cases. 

In  a  criminal  case,  the  state  is  charged  with  the  burden  of 
proof  with  reference  to  every  fact  that  constitutes  an  element 
of  the  offense.  Of  these  facts,  by  the  weight  of  authority,  san- 
ity of  the  accused  is  one.  Unless,  therefore,  the  jury  are  sat- 
isfied, upon  a  consideration  of  all  the  evidence,  whether  ad- 
duced by  the  state  or  by  the  accused,  that  at  the  time  ihe 
alleged  crime  was  committed  the  accused  was  of  sane  mind, 
the  state  has  failed  to  establish  its  case,  and  the  accused  is  en- 
titled to  an  acquittal.758  In  some  states,  however,  this  view 
does  not  prevail.  Insanity  is  regarded  as  an  affirmative  de- 

757  Rogers  v.  Armstrong  Co.  (Tex.  Civ.  App.)  30  S.  W.  848;  Mo.  Pac. 
R.  Co.  v.  Brazzil,  72  Tex.  233. 

TSS  UNITED  STATES:     Davis  v.  U.  S.,  160  U.  S.  469;  Thayer,  Gas.  Ev.  90. 

COLORADO:     Jones  v.  People,  23  Colo.  276. 

CONNECTICUT:     State  v.  Johnson,  40  Conn.  136. 

FLORIDA:  Armstrong  v.  State,  30  Fla.  170,  17  L.  R.  A.  484,  27  Fla. 
366,  26  A.  S.  R.  72. 

ILLINOIS:  Hopps  v.  People,  31  111.  385,  83  A.  D.  231;  Dacey  v.  People, 
116  111.  555;  Montag  v.  People,  141  111.  75;  Lilly  v.  People,  148  111.  467; 
Chase  v.  People,  40  111.  352. 

INDIANA:     Plake  v.  State,  121  Ind.  433,  16  A.  S.  R.  408. 

KANSAS:     State  v.  Crawford,  11  Kan.  32;  State  v.  Nixon,  32  Kan.  205. 

MICHIGAN:     People  v.  Garbutt,  17  Mich.  9,  97  A.  D.  162. 

MISSISSIPPI:  Cunningham  v.  State,  56  Miss.  269,  31  A.  R.  360;  Ford 
v.  State,  73  Miss.  734,  35  L.  R.  A.  117. 

NEBRASKA:     Wright  v.  People,  4  Neb.  407. 

NEW  HAMPSHIRE:  State  v.  Bartlett,  43  N.  H.  224,  80  A.  D.  154;  State 
v.  Jones,  50  N.  H.  369,  9  A.  R.  242,  266. 

NEW  YORK:  O'Connell  v.  People,  87  N.  Y.  377,  41  A.  R.  379;  Brother- 
ton  v.  People,  75  N.  Y.  159;  Walker  v.  People,  88  N.  Y.  81. 

OKLAHOMA:     Maas  v.  Ter.,  10  Okl.  714,  53  L.  R.  A.  814. 

TENNESSEE:  King  v.  State,  91  Tenn.  617;  Dove  v.  State,  3  Heisk. 
348. 

The  burden  of  proof  was  held  to  be  on  the  state  in  Com.  v.  Eddy,  7 
Gray  (Mass.)  583,  although  it  was  held  that  the  accused  must  over- 
come the  presumption  of  sanity  operating  in  favor  of  the  state  by  a 
preponderance  of  the  evidence.  The  effect  of  this  requirement  would 


§  86  SANITY.  327 

fense,  the  burden  of  proving  which  rests  on  the  accused;  so 
that,  if  he  does  not  adduce  evidence  which  convinces  the  jury 
of  its  existence,  he  is  not  entitled  to  an  acquittal  on  that 
ground.759 

seem  to  be  to  throw  the  burden  of  establishing  insanity  on  the  ac- 
cused. 

If  the  state  asserts  that  the  accused's  insanity  was  a  drunken  mad- 
ness, and  so  no  defense,  the  burden  is  on  it  to  show  that  fact.  U.  8.  v. 
McGlue,  1  Curt.  1,  Fed.  Cas.  No.  15.679. 

The  burden  of  proof  operates  only  in  the  trial;  consequently  in  an 
investigation  of  the  grand  jury,  the  state  need  not  introduce  evidence 
of  the  accused's  sanity.  U.  S.  v.  Lawrence,  4  Cranch,  C.  C.  514,  Fed. 
Cas.  No.  15,576. 

759  ENGLAND:  McNaghten's  Case,  10  Clark  &  F.  200;  Reg.  v.  Layton, 
4  Cox  Cr.  Cas.  149. 

ALABAMA:     Ford  v.  State,  71  Ala.  385;  Parsons  v.  State,  81  Ala.  577, 

60  A.  R.  193;  Maxwell  v.  State,  89  Ala.  150. 

ABKANSAS:  Boiling  v.  State,  54  Ark.  588;  Williams  v.  State,  50  Ark. 
511. 

CALIFORNIA:     People  v.  Coffman,  24  Cal.  230;  People  v.  Messersmith, 

61  Cal.  246;  People  v.  Bawden,  90  Cal.  195;  People  v.  McNulty,  93  Cal. 
427;  People  v.  Allender,  117  Cal.  81;  People  v.  Ward,  105  Cal.  335. 

DELAWARE:  State  v.  West,  Houst.  Cr.  Cas.  371;  State  v.  Pratt,  Houst. 
Cr.  Cas.  249. 

GEORGIA:     Carr  v.  State,  96  Ga.  284. 

IOWA:     State  v.  Bruce,  48  Iowa,  530;  State  v.  Jones,  64  Iowa,  349. 

KENTUCKY:     Phelps  v.  Com.,  17  Ky.  L.  R.  706,  32  S.  W.  470. 

LOUISIANA:     State  v.  Scott,  49  La.  Ann.  253,  36  L.  R.  A.  721. 

MAINE:     State  v.  Lawrence,  57  Me.  574. 

MISSOURI:     State  v.  Schaefer,  116  Mo.  96. 

NEVADA:  State  v.  Hartley,  22  Nev.  342,  28  L.  R.  A.  33;  State  v. 
Lewis,  20  Nev.  333. 

NEW  JERSEY:  Graves  v.  State,  45  N.  J.  Law.  347,  46  A.  R.  778;  Claw- 
son  v.  State,  59  N.  J.  Law,  434. 

OHIO:  Kelch  v.  State,  55  Ohio  St.  146,  60  A.  S.  R.  680;  Bond  v.  State, 
23  Ohio  St.  349. 

OREGON:     State  v.  Hansen,  25  Or.  391  (statute). 

PENNSYLVANIA:  Ortweln  v.  Com.,  76  Pa.  414,  18  A.  R.  420;  Lynch  v. 
Com.,  77  Pa.  205;  Com.  v.  Bezek,  168  Pa.  603. 

SOUTH  CAROLINA:     State  v.  Paulk,  18  S.  C.  514. 


328  LAW   OF  EVIDENCE.  §  86 

While  the  state  must,  at  the  close  of  the  evidence,  convince 
the  jury  of  the  existence  of  all  the  elements  of  the  crime,  yet 
it  is  not  always  obliged  to  adduce  affirmative  evidence  of  each 
of  those  facts.  Some  presumption  may  operate  to  relieve  it 
of  that  burden.  So  it  is  in  regard  to  sanity,  even  in  those 
jurisdictions  where  the  state  bears  the  burden  of  proof  as  to 
that  fact.  Mental  competency  being  the  normal  condition  of 
man,  the  presumption  is,  in  the  absence  of  evidence  to  the  con- 
trary, that  at  any  given  time  a  given  person  was  sane.  Ac- 
cordingly, if  one  accused  of  crime  seeks  to  avoid  liability  on 
the  ground  of  insanity,  he  is,  by  the  weight  of  authority,  un- 
der the  necessity  of  adducing  evidence  of  that  fact.  Other- 
wise, a  presumption  of  sanity  operates  in  favor  of  the  state's 
case  which  takes  the  place  of  evidence  of  sanity.760  The  bur- 

TEXAS:  Leache  v.  State,  22  Tex.  App.  279;  Fisher  v.  State,  30  Tex. 
App.  502. 

UTAH:     People  v.  Dillon,  8  Utah,  92. 

See  comment  in  preceding  note  on  Com.  v.  Eddy,  7  Gray  (Mass.)  583. 

760  UNITED  STATES:  Davis  v.  U.  S.,  160  U.  S.  469,  486,  Thayer,  Cas. 
Ev.  90. 

ALABAMA:     McAllister  v.  State,  17  Ala.  434,  52  A.  D.  180. 

ARKANSAS:     McKenzie  v.  State,  26  Ark.  334. 

CONNECTICUT:     State  v.  Hoyt,  47  Conn.  518. 

FLORIDA:     Armstrong  v.  State,  30  Fla.  170,  17  L.  R.  A.  484. 

ILLINOIS:  Dacey  v.  People,  116  111.  555;  Chase  v.  People,  40  111.  352; 
Montag  v.  People,  141  111.  75. 

INDIANA:     Guetig  v.  State,  66  Ind.  94,  32  A.  R.  99. 

KANSAS:     State  v.  Crawford,  11  Kan.  32. 

LOUISIANA:     State  v.  De  Ranee,  34  La.  Ann.  186,  44  A.  R.  426. 

MASSACHUSETTS:  Com.  v.  Rogers,  7  Mete.  500,  41  A.  D.  458;  Com.  v. 
Eddy,  7  Gray,  583. 

MICHIGAN:   People  v.  Garbutt,  17  Mich.  9,  97  A.  D.  162. 

MISSISSIPPI:  Cunningham  v.  State,  56  Miss.  269,  31  A.  R.  360;  Ford 
v.  State.  73  Miss.  734,  35  L.  R.  A.  117. 

MISSOUBI:  State  v.  McCoy,  34  Mo.  531,  86  A.  D.  121;  State  v.  Rede- 
meier,  71  Mo.  173,  36  A.  R.  462. 

NEW  HAMPSHIRE:  State  v.  Bartlett,  43  N.  H.  224,  80  A.  D.  154;  State 
v.  Pike,  49  N.  H.  399,  6  A.  R.  533,  544. 


$  87  SANITY.  329 

den  thus  cast  on  the  accused  is  not  the  burden  of  proof  in  the 
sense  that  he  must,  upon  a  consideration  of  all  the  evidence, 
convince  the  jury  of  his  insanity.  It  is  merely  the  burden  of 
adducing  or  going  forward  with  evidence  on  that  particular 
point. 

Whether  sanity  or  insanity  may  be  proved  by  a  preponder- 
ance of  evidence,  or  whether  proof  beyond  a  reasonable  doubt 
is  required,  is  a  question  affecting  the  measure  of  evidence. 
Though  usually  linked  with  questions  of  presumption  and  bur- 
den of  proof,  it  is  distinct  from  them,  and  is  accordingly  con- 
sidered in  another  connection.761 

§  87.    Civil  cases. 

In  civil  cases,  the  party  who  is  obliged,  by  rules  of  sub- 
stantive law  and  of  pleading,  to  allege  sanity  or  insanity,  bears 
the  burden  of  proof  as  to  that  allegation  in  the  sense  that  he 
must  convince  the  jury  of  the  existence  of  the  fact;762  but,  if 
he  alleges  sanity,  the  presumption  of  sanity  makes  a  prima 

NEW  MEXICO:     Faulkner  v.  Ter.,  6  N.  M.  464. 

NEW  YOBK:  O'Connell  v.  People,  87  N.  Y.  377,  41  A.  R.  379;  Brother- 
ton  v.  People,  75  N.  Y.  159;  Walker  v.  People,  88  N.  Y.  81;  People  v. 
McCann,  16  N.  Y.  58,  69  A.  D.  642. 

NORTH  CAROLINA:  State  v.  Norwood,  115  N.  C.  789,  44  A.  S.  R.  498; 
State  v.  Potts,  100  N.  C.  457. 

OKLAHOMA:     Maas  v.  Ter.,  10  Okl.  714,  53  L.  R.  A.  814. 

PENNSYLVANIA:     Com.  v.  Gerade,  145  Pa.  289,  27  A.  S.  R.  689. 

TENNESSEE:     King  v.  State,  91  Tenn.  617. 

VIRGINIA:  Dejarnette  v.  Com.,  75  Va.  867;  Bacclgalupo  v.  Com.,  33 
Grat.  807,  36  A.  R.  795. 

The  same  is  true  in  regard  to  idiocy.  Com.  v.  Heath,  11  Gray  (Mass.) 
303. 

T6i  See  §  6 (a),  supra. 

762  This  rule  applies  against  the  plaintiff  in  an  action  for  personal  in- 
juries, where  he  seeks  to  avoid  the  effect  of  conduct  on  his  part  which, 
if  he  were  sane,  would  constitute  contributory  negligence.  Worthing- 
ton  v.  Mencer.  96  Ala.  310,  17  L.  R.  A.  407. 


330  LAW  OF  EVIDENCE.  §  87a 

facie  case  in  his  favor,  and  accordingly  casts  on  his  opponent 
the  burden  of  adducing  evidence  of  insanity. 

(a)  Contracts  and  conveyances.  If,  for  example,  a  person 
seeks  to  avoid  a  marriage  contract  on  the  ground  of  insanity, 
he  bears  the  burden  of  establishing  that  fact.763  Again,  if  a 
person  sues  directly  or  indirectly  to  avoid,  on  the  same  ground, 
a  transfer  made  by  him,  he  must  establish  insanity  at  the  time 
of  the  transfer ;  and  the  same  is  true  where  the  suit  is  brought 
by  his  guardian  or  his  heirs.764  If,  on  the  other  hand,  a  gran- 
tee brings  ejectment  for  the  land,  and  the  grantor,  his  guard- 
ian, or  his  heir,  defends  on  the  ground  that  he  was  insane  when 
he  made  the  deed,  the  burden  of  establishing  that  fact  rests 
on  the  defendant.765  So,  if  the  insurer  defends  an  action  on 
the  policy  because  the  insured  committed  suicide,  and  the 
beneficiary  seeks  to  avoid  the  effect  of  the  breach  of  condition 
on  the  ground  that  at  the  time  he  took  his  life  the  insured  was 
insane,  the  burden  of  establishing  insanity  rests  upon  the  bene- 
ficiary.796 

763  Rawdon  v.  Rawdon,  28  Ala.  565;  Baughman  v.  Baughman,  32  Kan. 
538;   Banker  v.  Banker,  63  N.  Y.  409;   Nonnemacher  v.  Nonnemacher, 
159  Pa.  634. 

764  Pike  v.  Pike,  104  Ala.  642;  Francis  v.  Wilkinson,  147  111.  370;  Lilly 
v.  Waggoner,  27  111.  395;  Myatt  v.  Walker,  44  111.  485;  Greene  v.  Phoenix 
M.  L.  Ins.  Co.,  134  111.  310,  10  L.  R.  A.  576;  Achey  v.  Stephens,  8  Ind. 
411;  Fay  v.  Burditt,  81  Ind.  433,  42  A.  R.  142;  Wright  v.  Wright,  139 
Mass.  177,  182;  Howe  v.  Howe,  99  Mass.  88;  Brown  v.  Brown,  39  Mich. 
792;  Youn  v.  Lament,  56  Minn.  216;  Jones  v.  Jones,  137  N.  Y.  610;  Mil- 
ler v.  Rutledge,  82  Va.  863;  Jarrett  v.  Jarrett,  11  W.  Va.  584;  Anderson 
v.  Cranmer,  11  W.  Va.  562;  Buckey  v.  Buckey,  38  W.  Va.  168.     And  see 
Attorney-General  v.  Parnther,  3  Brown  Ch.  441,  443. 

res  Hoge's  Lessee  v.  Fisher,  Pet.  C.  C.  163,  Fed.  Cas.  No.  6,585. 

766  Terry  v.  Life  Ins.  Co.,  1  Dill.  403,  Fed.  Cas.  No.  13,839,  affirmed 
15  Wall.  (U.  S.)  580;  Gay  v.  Union  M.  L.  Ins.  Co.,  9  Blatchf.  142,  Fed. 
Cas.  No.  5,282;  Moore  v.  Conn.  M.  L.  Ins.  Co.,  1  Flip.  363,  Fed.  Cas.  No. 
9,755;  Jarvis  v.  Conn.  M.  L.  Ins.  Co.,  Fed.  Cas.  No.  7,226;  Hopkins  v. 
N.  W.  L.  Assur.  Co.,  94  Fed.  729;  Merritt  v.  Cotton  States  L.  Ins.  Co., 
55  Ga.  103;  Knickerbocker  L.  Ins.  Co.  v.  Peters,  42  Md.  414;  Cooper  v. 


§  87b  SANITY.  331 

(b)  Wills.  The  proponent  of  a  will  is  charged  with  the  bur- 
den of  proof  in  the  sense  that  he  must  establish  the  existence 
of  every  fact  that  constitutes  an  element  of  his  case.  Of  these 
facts  sanity  of  the  testator  is  one;  so  that  if  the  jury,  upon 
a  consideration  of  all  the  evidence,  whether  adduced  by  the 
proponent  or  by  the  contestant,  are  not  convinced  that  the 
testator  was  sane  when  he  made  the  will,  the  verdict  must  be 
for  the  contestant.787  In  some  states,  however,  this  rule  does 

Mass.  M.  L.  Ins.  Co.,  102  Mass.  227,  3  A.  R.  451;  Weed  v.  Mut.  Ben.  L. 
Ins.  Co.,  70  N.  Y.  561;  Phadenhauer  v.  Germania  L.  Ins.  Co.,  7  Heisk. 
(Tenn.)  567,  19  A.  R.  623. 

While  the  fact  of  suicide  is  not  prima  facie  evidence  of  insanity,  yet 
it  may  be  considered  by  the  jury,  together  with  the  other  facts  and 
circumstances  in  evidence,  in  determining  the  question  of  insanity. 
Ritter  v.  Mut.  L.  Ins.  Co.,  69  Fed.  505;  Duffield  v.  Robeson,  2  Har.  (Del.) 
375;  Grand  Lodge  v.  Wieting,  168  111.  408,  61  A.  S.  R.  123;  Jones  v. 
Gorham,  90  Ky.  622,  29  A.  S.  R.  423. 

Where  the  policy  was  to  be  void  if  the  insured  should  die  by  his 
own  hand,  "except  that,  in  case  he  shall  die  by  his  own  hands  while 
insane,"  the  insurer  should  refund  the  premiums,  with  interest,  the 
insurer  cannot  defeat  a  recovery  on  the  policy  because  the  insured  died 
by  his  own  hand,  unless  it  shows  that  he  knew  the  physical  nature  and 
effect  of  the  act  causing  his  death.  Mut.  Ben.  L.  Ins.  Co.  v.  Daviess' 
Ex'r,  87  Ky.  542. 

767  ENGLAND:  Sutton  v.  Sadler,  3  C.  B.  (N.  S.)  87,  Thayer,  Cas. 
Ev.  97. 

CONNECTICUT:  Knox's  Appeal,  26  Conn.  20;  Comstock  v.  Hadlyme 
Ecc.  Soc.,  8  Conn.  254,  20  A.  D.  100;  Livingston's  Appeal,  63  Conn.  68; 
Barber's  Appeal,  63  Conn.  393,  22  L.  R.  A.  90. 

GEORGIA  :     Evans  v.  Arnold.  52  Ga.  169. 

ILLINOIS:  Wilbur  v.' Wilbur,  129  111.  392;  Harp  v.  Parr,  168  111.  459, 
477. 

KENTUCKY:  Hawkins  v.  Grimes,  13  B.  Mon.  257;  King  v.  King,  19 
Ky.  L.  R.  868,  42  S.  W.  347;  Johnson  v.  Stivers,  95  Ky.  128. 

MAINE:  Gerrish  v.  Nason,  22  Me.  438,  39  A.  D.  589;  Robinson  v. 
Adams,  62  Me.  369,  16  A.  R.  473,  489;  Hall  v.  Perry,  87  Me.  569,  47  A. 
S.  R.  352. 

MASSACHUSETTS:  Baxter  v.  Abbott,  7  Gray,  71;  Baldwin  v.  Parker, 
99  Mass.  79,  96  A.  D.  697  (semble) ;  Bacon  v.  Bacon,  181  Mass.  18,  92  A. 
S.  R.  397. 


332  LAW  OF  EVIDENCE.  §  87b 

not  prevail,  and  the  burden  of  establishing  insanity  rests  on 
the  contestant.768 

MICHIGAN:  Taff  v.  Hosmer.  14  Mich.  309;  McGinnis  v.  Kempsey,  27 
Mich.  363;  Moriarty  v.  Moriarty,  108  Mich.  249;  Prentis  v.  Bates,  93 
Mich.  234,  245,  Thayer,  Gas.  Ev.  105. 

MINNESOTA:     In  re  Layman's  Will,  40  Minn.  371. 

MISSISSIPPI:  Sheehan  v.  Kearney,  21  So.  41,  35  L.  R.  A.  102  (stat- 
ute). 

MISSOURI:  Maddox  v.  Maddox,  114  Mo.  35,  35  A.  S.  R.  734. 

NEBRASKA:  Murry  v.  Hennessey,  48  Neb.  608;  Seebrock  v.  Fedawa, 
30  Neb.  424. 

NEW  HAMPSHIRE:  Hardy  v.  Merrill,  56  N.  H.  227,  22  A.  R.  441;  Per- 
kins v.  Perkins,  39  N.  H.  163. 

NEW  YORK:  Dobie  v.  Armstrong,  160  N.  Y.  584,  590  (semble);  Dela- 
field  v.  Parish,  25  N.  Y.  9. 

OREGON:     Chrisman  v.  Chrisman,  16  Or.  127. 

TEXAS:  Beazley  v.  Benson,  40  Tex.  416;  Renn  v.  Samos,  33  Tex. 
760. 

VERMONT:  Williams  v.  Robinson,  42  Vt.  658,  1  A.  R.  359,  overruling 
Dean  v.  Dean's  Heirs,  27  Vt.  746. 

WEST  VIRGINIA:  McMechen  v.  McMechen,  17  W.  Va.  683,  41  A.  R. 
682  (semble). 

WISCONSIN:  Silverthorn's  Will,  68  Wis.  372  (semble);  Allen  v.  Grif- 
fin, 69  Wis.  529  (semble). 

See,  however,  Howat  v.  Howat's  Ex'r,  19  Ky.  L.  R.  756,  41  S.  W.  771. 

The  rule  is  unquestionably  so,  if  the  testator,  when  the  will  was 
made,  had  been  adjudged  insane  and  placed  under  guardianship.  Har- 
rison v.  Bishop,  131  Ind.  161,  31  A.  S.  R.  422;  Crowninshield  v.  Crown- 
inshield,  2  Gray  (Mass.)  524,  Thayer,  Gas.  Ev.  100.  The  rule  is  the 
same,  also,  in  a  suit  in  equity  to  set  aside  a  will  that  has  been  ad- 
mitted to  probate.  Irish  v.  Newell,  62  111.  196,  14  A.  R.  79,  82  (sem- 
ble) ;  Pendlay  v.  Eaton,  130  111.  69.  Contra,  Roller  v.  Kling,  150  Ind. 
159;  Runyan  v.  Price,  15  Ohio  St.  1,  86  A.  D.  459  (statute).  And  it 
prevails  also  in  a  statutory  contest.  Tingley  v.  Cowgill,  48  Mo.  291; 
Norton  v.  Tingley,  110  Mo.  456.  Contra,  Blough  v.  Parry,  144  Ind.  463; 
Young  v.  Miller,  145  Ind.  652. 

While  the  rule  stated  in  the  text  is  announced  in  form  in  Connecti- 
cut, Illinois,  and  Kentucky,  yet  some  cases  in  these  states,  by  treating 
the  presumption  of  sanity,  not  as  affecting  the  burden  of  adducing  evi- 
dence merely,  but  as  constituting  positive  evidence  in  itself,  virtually 
place  the  burden  of  establishing  insanity  on  the  contestant.  In  re 


§  87b  SANITY.  333 

Even  in  those  jurisdictions  where  the  proponent  bears  the 
burden  of  proving  sanity,  yet  he  is  not  necessarily  bound  to 
adduce  affirmative  evidence  of  that  fact.  In  many  of  these 
states  proof  of  the  formal  execution  of  the  will  gives  rise  to 
a  presumption  of  sanity  and  makes  a  prima  facie  case  in  favor 
of  the  proponent,  and  the  burden  of  adducing  evidence  to 
overcome  it  rests  upon  the  contestant.76"  In  other  jurisdic- 

Barber's  Estate,  63  Conn.  393,  22  L.  R.  A.  90;  Egbers  v.  Egbers,  177 
111.  82;  Taylor  v.  Pegram,  154  111.  106;  Graybeal  v.  Gardner,  146  111. 
337;  Pendlay  v.  Eaton,  130  111.  69;  Wilbur  v.  Wilbur.  129  111.  392; 
Hawkins  v.  Grimes,  13  B.  Mon.  (Ky.)  257.  See  Sturdevant's  Appeal 
from  Probate,  71  Conn.  392,  Thayer,  Cas.  Ev.  95. 

768  ALABAMA:  Eastis  v.  Montgomery,  95  Ala.  486,  36  A.  S.  R.  227; 
Saxon  v.  Whitaker's  Ex'r,  30  Ala.  237. 

INDIANA:     Teegarden  v.  Lewis,  145  Ind.  98. 

IOWA:  In  re  Coffman's  Will,  12  Iowa,  491;  Stephenson  v.  Stephenson, 
62  Iowa,  163. 

MARYLAND:     Taylor  v.  Creswell,  45  Md.  422. 

NEW  JEBSEY:  Whitenack  v.  Stryker,  2  N.  J.  Eq.  8;  Elkinton  v.  Brick, 
44  N.  J.  Eq.  154,  1  L.  R.  A.  161;  Turner  v.  Cheesman,  15  N.  J.  Eq.  243. 

PENNSYLVANIA:  Egbert  v.  Egbert,  78  Pa.  326;  Grabill  v.  Barr,  5  Pa. 
441,  47  A.  D.  418  (semble);  Taylor  v.  Trich,  165  Pa.  586,  44  A.  S.  R. 
679,  686;  Grubbs  v.  McDonald,  91  Pa.  236. 

TENNESSEE:     Ford  v.  Ford,  7  Humph.  91. 

VIRGINIA:     Burton  v.  Scott,  3  Rand.  399. 

In  the  trial  of  an  issue  of  devisavit  vel  non,  the  burden  of  proof  as 
to  insanity  rests  on  the  caveator.  McDaniel  v.  Crosby,  19  Ark.  533; 
Mayo  v.  Jones,  78  N.  C.  402. 

In  a  statutory  action  to  establish  the  validity  of  a  testamentary  pro- 
bate, the  burden  of  proving  insanity  rests  on  the  defendant.  Dobie  v. 
Armstrong,  160  N.  Y.  584. 

In  ejectment  by  a  devisee  against  an  heir,  the  burden  of  showing 
insanity  of  the  testator  rests  on  the  heir.  Jackson  v.  Van  Dusen,  5 
Johns.  (N.  Y.)  144,  4  A.  D.  330. 

T69Sutton  v.  Sadler,  3  C.  B.  (N.  S.)  87,  Thayer,  Cas.  Ev.  97,  99; 
O'Donnell  v.  Rodiger,  76  Ala.  222,  52  A.  R.  322;  Duffleld  v.  Robeson,  2 
Har.  (Del.)  375;  Rush  v.  Megee,  36  Ind.  69;  Howat  v.  Howat's  Ex'r,  19 
Ky.  L.  R.  756,  41  S.  W.  771;  Fee  v.  Taylor,  83  Ky.  259;  Baxter  v.  Ab- 
bott, 7  Gray  (Mass.)  71;  Hardy  v.  Merrill,  56  N.  H.  227,  22  A.  R.  441; 
Chrisman  v.  Chrisman,  16  Or.  127;  Rees  v.  Stille,  38  Pa.  138  (semble); 


334  LAW   OF  EVIDENCE.  §  87b 

tions,  however,  a  contrary  view  prevails.  The  presumption 
of  sanity  does  not  apply, — at  least  it  is  not  given  full  effect, — 
and  the  proponent  must  accordingly  adduce  evidence  of  san- 
ity,— slight  evidence  at  least, — in  the  first  instance.770 

Harden  v.  Hays,  9  Pa.  151;  Kaufman  v.  Caughman,  49  S.  C.  159,  61  A. 
S.  R.  808. 

The  presumption  of  sanity  does  not  thus  apply  in  favor  of  the  pro- 
ponent, where  the  will  was  made  by  one  under  guardianship  as  an  in- 
sane person,  since  the  adjudication  of  insanity  is  prima  facie  evidence 
of  that  fact.  Harrison  v.  Bishop,  131  Ind.  161,  31  A.  S.  R.  422;  Crown- 
inshield  v.  Crowninshield,  2  Gray  (Mass.)  524,  Thayer,  Cas.  Ev.  100, 
105.  See  note  771,  infra. 

Inequality  of  bequests  to  next  of  kin  does  not  raise  a  presumption  of 
incompetency,  so  as  to  shift  the  burden  of  adducing  evidence  of  com- 
petency upon  the  proponent.  Knox  v.  Knox, '95  Ala.  495,  36  A.  S.  R. 
235. 

"o  CONNECTICUT:  Knox's  Appeal  from  Probate,  26  Conn.  20;  Corn- 
stock  v.  Hadlyme  Ecc.  Soc.,  S  Conn.  254,  20  A.  D.  100;  In  re  Barber's 
Estate,  63  Conn.  393,  22  L.  R.  A.  90. 

GEORGIA:     Evans  v.  Arnold,  52  Ga.  169. 

ILLINOIS:     Pendlay  v.  Eaton.  130  111.  69  (statute). 

KENTUCKY:     Hawkins  v.  Grimes,  13  B.  Mon.  257   (semble). 

MAINE:  Gerrish  v.  Nason,  22  Me.  438,  39  A.  D.  589;  Cilley  v.  Cilley, 
34  Me.  162. 

MICHIGAN:     Taff  v.  Hosmer,  14  Mich.  309. 

MINNESOTA:     In  re  Layman's  Will,  40  Minn.  371  (statute). 

MISSOURI:     Norton  v.  Paxton,  110  Mo.  456. 

NEBRASKA:  Seebrock  v.  Fedawa.  30  Neb.  424;  Murry  v.  Hennessey, 
48  Neb.  608.  611. 

NEW  YORK:     Delafleld  v.  Parish.  25  N.  Y.  9. 

TEXAS:     Beazley  v.  Benson,  40  Tex.  416. 

VERMONT:     Williams  v.  Robinson,  42  Vt.  658,  1  A.  R.  359. 

WISCONSIN:  Silverthorn's  Will,  68  Wis.  372  (semble);  Allen  v.  Grif- 
fin, 69  Wis.  529  (semble). 

The  later  cases  in  Kentucky  seem  to  disregard  Hawkins  v.  Grimes, 
13  B.  Mon.  (Ky.)  257.  See  note  769,  supra. 

If  the  proponent  produces  the  subscribing  witnesses  to  the  will,  who 
testify  to  its  formal  execution,  and  to  the  testator's  apparent  sanity,  it 
constitutes  a  prima  facie  case,  and  the  burden  of  adducing  evidence 
of  insanity  shifts  to  the  contestant.  In  re  Barber's  Estate.  63  Conn. 
393,  22  L.  R.  A.  90;  Taylor  v.  Pegram,  151  111.  106;  Harp  v.  Parr,  168 


§  88  SANITY.  335 

§  88.    Continuance  of  insanity. 

If  insanity  of  a  permanent  nature  is  shown  to  have  existed 
at  a  time  in  the  past,  a  presumption  of  its  continuance  arises, 
in  the  absence  of  evidence  to  the  contrary.  Consequently,  a 
party  impeaching  an  act  done  by  the  person  in  question  after 
that  time  thereby  makes  a  prima  facie  case;  and  the  burden 
of  showing  that  the  act  was  done  after  restoration  to  reason 
or  in  a  lucid  interval  devolves  upon  the  party  who  claims  that 
the  act  is  valid.771  This  presumption  is  rebuttable  ;772  and  it 

111.  459;  Pendlay  v.  Eaton,  130  111.  69;  King  v.  King,  19  Ky.  L.  R.  868, 
42  S.  W.  347;  McFadin  v.  Catron,  138  Mo.  197;  Perkins  v.  Perkins,  39 
N.  H.  163;  Allen  v.  Griffin,  69  Wis.  529. 

The  subscribing  witnesses  must  be  examined  as  to  testator's  sanity 
if  they  can  be  produced.  Perkins  v.  Perkins,  39  N.  H.  163. 

If  a  will  contains  dispositions  such  as  would  cause  insanity  to  be 
presumed,  although  capable  of  being  justified  by  peculiar  circumstances, 
the  burden  of  proving  sanity  is  on  the  proponent.  Chandler  v.  Barrett, 
21  La.  Ann.  58,  99  A.  D.  701. 

771  ENGLAND:  Attorney-General  v.  Parnther,  3  Brown  Ch.  441,  443; 
Clarke  v.  Cartwright,  1  Phillim.  Ecc.  90,  1  Eng.  Ecc.  R.  47,  51;  Hall  v. 
Warren,  9  Ves.  605;  White  v.  Wilson,  13  Ves.  87. 

IRELAND:     Walcot  v.  Alleyn,  Milw.  65,  69. 

UNITED  STATES:  Hoge's  Lessee  v.  Fisher,  Pet.  C.  C.  163,  Fed.  Cas.  No. 
6,585. 

ALABAMA:  Wray  v.  Wray,  33  Ala.  187;  Pike  v.  Pike,  104  Ala,  642; 
Rawdon  v.  Rawdon,  28  Ala.  565;  Eastis  v.  Montgomery,  95  Ala.  486,  36 
A.  S.  R.  227;  Saxon  v.  Whitaker's  Ex'r,  30  Ala.  237;  O'Donnell  v.  Rodi- 
«er,  76  Ala.  222,  52  A.  R.  322. 

CONNECTICUT:     State  v.  Johnson,  40  Conn.  136. 

DELAWARE:     Duffleld  -v.  Robeson,  2  Har.  375. 

FLORIDA:     Armstrong  v.  State,  30  Fla.  170,  17  L.  R.  A.  484. 

GEORGIA:  Dicken  v.  Johnson,  7  Ga.  484;  Norman  v.  Ga.  L.  &  T.  Co., 
92  Ga.  295,  297. 

ILLINOIS:     Emery  v.  Hoyt,  46  111.  258. 

INDIANA:  Sheets  v.  Bray,  125  Ind.  33;  Crouse  v.  Holman,  19  Ind.  30; 
Stumph  v.  Miller,  142  Ind.  442,  445;  Roller  v.  Kling,  150  Ind.  159;  Rush 
v.  Megee,  36  Ind.  69. 

KANSAS:     Lantis  v.  Davidson,  60  Kan.  389. 

KENTUCKY:     Carpenter  v.  Carpenter,  8  Bush,  283. 


336  LAW   OF   EVIDENCE.  §   gg 

does  not  arise  if  insanity  shown  to  have  existed  in  the  past 
also  appears  to  have  been  the  result  of  temporary  causes.773 

LOUISIANA:     Chandler  v.  Barrett,  21  La.  Ann.  58,  99  A.  D.  701. 

MAINE:     Weston  v.  Higgins,  40  Me.  102,  105. 

MARYLAND:  Brown  v.  Ward,  53  Md.  376,  36  A.  R.  422;  Taylor  v. 
Creswell,  45  Md.  422. 

MASSACHUSETTS:  Wright  v.  Wright,  139  Mass.  177,  182;  Little  v. 
Little,  13  Gray,  264,  266. 

MINNESOTA:     State  v.  Hay  ward,  62  Minn.  474. 

MISSISSIPPI:  Ford  v.  State,  73  Miss.  734,  35  L.  R.  A.  117;  Mullins  v. 
Cottrell,  41  Miss.  291;  Ricketts  v.  Jolliff,  62  Miss.  440. 

MISSOURI:     State  v.  Schaefer,  116  Mo.  96. 

NEW  JERSEY:  Turner  v.  Cheesman,  15  N.  J.  Eq.  243;  State  v.  Spen- 
cer, 21  N.  J.  Law,  196;  Whitenack  v.  Stryker,  2  N.  J.  Eq.  8;  Elkinton 
v.  Brick,  44  N.  J.  Eq.  154,  1  L.  R.  A.  161. 

NEW  YORK:  Jackson  v.  Van  Dusen,  5  Johns.  144,  4  A.  D.  330;  Jack- 
son v.  King,  4  Cow.  207,  15  A.  D.  354;  Clark  v.  Fisher,  1  Paige,  171,  19- 
A.  D.  402. 

NORTH  CAROLINA:  Smith  v.  Smith,  108  N.  C.  365,  368;  Den  d.  Ballew 
v.  Clark,  24  N.  C.  (2  Ired.)  23. 

OHIO:     Hosier  v.  Beard,  54  Ohio  St.  398,  56  A.  S.  R.  720. 

OREGON:     Clark's  Heirs  v.  Ellis,  9  Or.  128. 

PENNSYLVANIA:  Harden  v.  Hays,  9  Pa.  151;  Rogers  v.  Walker,  6  Pa. 
371,  47  A.  D.  470;  Grabill  v.  Barr,  5  Pa.  441,  47  A.  D.  418. 

TENNESSEE:     Wright  v.  Market  Bank  (Ch.  App.)  60  S.  W.  623. 

VIRGINIA:     Fishburne  v.  Ferguson's  Heirs,  84  Va.  87. 

WEST  VIRGINIA:  Anderson  v.  Cranmer,  11  W.  Va.  562;  Jarrett  v.  Jar- 
rett,  11  W.  Va.  584. 

WISCONSIN:  Wright  v.  Jackson,  59  Wis.  569;  Ripley  v.  Babcock,  13- 
Wis.  425. 

The  same  rule  applies  to  monomania  or  insane  delusion.  Boughton 
v.  Knight,  L.  R.  3  Prob.  &  Div.  64;  Smith  v.  Tebbitt,  L.  R.  1  Prob.  & 
Div.  398;  Thornton  v.  Appleton,  29  Me.  298,  300;  Jenckes  v.  Probate 
Ct.,  2  R.  I.  255;  State  v.  Wilner,  40  Wis.  304.  See,  however,  Gillespie 
v.  Shuliberrier,  50  N.  C.  (5  Jones)  157. 

After  inquest  found,  the  presumption  is  that  the  person  in  question 
Is  insane.  Lilly  v.  Waggoner,  27  111.  395;  Breed  v.  Pratt,  18  Pick. 
(Mass.)  115.  See  note  769,  supra. 

Ordinarily,  in  caces  of  permanent  insanity,  proof  of  a  lucid  interval 
does  not  raise  a  presumption  of  lucidity  at  a  later  time.  Pike  v.  Pike, 
104  Ala.  642;  Saxon  v.  Whitaker's  Ex'r,  30  Ala.  237;  Harden  v.  Hays,. 
9  Pa.  151.  See,  however,  Wright  v.  Jackson,  59  Wis.  569. 


§  89  USE  AND  POSSESSION.  337 

T.  USE  AND  POSSESSION. 

§  89.    Presumption  of  ownership  from  mere  possession. 

In  the  absence  of  other  evidence  as  to  the  title  to  property, 
a  claimant  makes  a  prima  facie  case  of  title  in  himself  by  show- 
Evidence  of  insanity  subsequent  to  the  transaction  in  suit  is  admis- 
sible, under  some  conditions,  to  show  insanity  at  that  time.  Taylor  v. 
Creswell,  45  Md.  422;  Com.  v.  Pomeroy,  117  Mass.  143.  See  §  34, 
supra. 

It  has  been  held  that  the  presumption  of  continuance  of  insanity 
is  one  of  fact  merely;  that  is,  a  mere  inference  based  on  circumstan- 
tial evidence,  and  not  a  presumption  of  law.  Manley's  Ex'r  v.  Staples, 
65  Vt.  370. 

772  Snow  v.  Benton,  28  111.  306. 

The  presumption  of  continued  insanity  arising  from  an  adjudica- 
tion thereof  may  be  rebutted  by  other  evidence  than  an  adjudication 
of  restoration  to  reason.  Rodgers  v.  Rodgers,  56  Kan.  483;  Mut.  L. 
Ins.  Co.  v.  Wiswell,  56  Kan.  765.  Thus,  if  the  adjudged  lunatic  after- 
wards marries  and  lives  with  the  wife  for  thirty  years  or  more,  the 
presumption  is  rebutted,  and  the  marriage  is  presumptively  legal. 
Castor  v.  Davis,  120  Ind.  231.  And  the  same  has  been  held  where  in- 
sanity both  before  and  after  the  marriage  is  proven.  Ward  v.  Du- 
laney,  23  Miss.  410. 

Reasonableness  of  the  act  done  by  the  party  in  question  may  be 
evidence  of  lucidity  at  the  particular  time.  Clarke  v.  Cartwright,  1 
Phillim.  Ecc.  90,  1  Eng.  Ecc.  R.  47,  51;  Walcot  v.  Alleyn,  Milw.  65,  70; 
Bey's  Succession,  46  La.  Ann.  773,  24  L.  R.  A.  577;  Wright  v.  Jackson, 
59  Wis.  569,  583.  And  see  note  773,  infra. 

773  IRELAND:     Walcot  v.  Alleyn.  Milw.  65,  69. 

UNITED  STATES:     Lewis  v.  Baird,  3  McLean,  56,  Fed.  Cas.  No.  8,316. 

ALABAMA:     Ford  v.  State,  71  Ala.  385. 

CALIFORNIA:  People  v.  Francis,  38  Cal.  183;  People  v.  Schmitt,  106 
Cal.  48. 

DELAWARE:     Duffield  v.  Robeson,  2  Har.  375. 

ILLINOIS:  Taylor  v.  Pegram,  151  111.  106;  Irish  v.  Newell,  62  111. 
196,  14  A.  R.  79. 

INDIANA:     Grouse  v.  Holman,  19  Ind.  30. 

KENTUCKY:     Carpenter  v.  Carpenter,  8  Bush,  283. 

MAINE:     Staples  v.  Wellington,  58  Me.  453. 

MARYLAND:  Brown  v.  Ward.  53  Md.  376,  36  A.  R.  422;  Turner  v. 
Rusk,  53  Md.  65;  Townshend  v.  Townshend,  7  Gill,  10. 

Hammon,  Ev. — 22. 


338  LAW  OF  EVIDENCE.  §  89a 

ing  that  at  the  time  the  cause  of  action  accrued  he  was  in  peace- 
able possession  of  the  property.  In  other  words,  peaceable 
possession  of  property  raises  a  presumption  of  ownership  where 
other  evidence  of  the  title  is  not  adduced.  And  this  presump- 
tion applies  to  all  sorts  of  property,  real  and  personal. 

(a)  Personal  property.  In  the  absence  of  other  evidence  of 
title,  peaceable  possession  of  personal  property,  under  a  claim 
of  right,  though  not  for  a  period  sufficient  to  give  title  by  lim- 
itation or  prescription,  raises  a  presumption  of  ownership  in 
the  possessor.77*  By  showing  a  peaceable  possession  prior  to 

MASSACHUSETTS:  Hix  v.  Whittemore,  4  Mete.  545;  Little  v.  Little, 
13  Gray,  264,  266. 

MINNESOTA:     State  v.  Hay  ward,  62  Minn.  474. 

MISSISSIPPI:     Ford  v.  State,  73  Miss.  734,  35  L.  R.  A.  117. 

MISSOURI:     State  v.  Howard,  118  Mo.  127. 

OREGON:     Clark's  Heirs  v.  Ellis,  9  Or.  128. 

TENNESSEE:     Wright  v.  Market  Bank  (Ch.  App.)  60  S.  W.  623. 

TEXAS:     Leache  v.  State,  22  Tex.  App.  279. 

VERMONT:     Manley's  Ex'r  v.  Staples,  65  Vt.  370,  374. 

WISCONSIN:     State  v.  Wilner,  40  Wis.  304. 

Evidence  of  fixed  habits  of  intemperance  for  a  long  period  preced- 
ing the  transaction  in  suit  does  not  make  a  prima  facie  case  of  in- 
competency  at  that  time;  much  less  does  evidence  of  occasional  drunk- 
enness. State  v.  Reddick,  7  Kan.  143,  151;  Lee's  Will,  46  N.  J.  Eq. 
193;  Elkinton  v.  Brick,  44  N.  J.  Eq.  154,  1  L.  R.  A.  161;  Noel  v.  Kar- 
per,  53  Pa.  97.  See,  however,  Cochran's  Will,  7  T.  B.  Mon.  (Ky.)  264, 
15  A.  D.  116. 

Where  incapacity  at  a  time  prior  to  the  transaction  in  suit  is 
shown,  but  the  defect  is  not  continuous  in  its  nature,  and  the  act  im- 
peached is  in  itself  reasonable,  and  so  furnishes  no  intrinsic  evidence 
of  incompetency,  the  burden  of  showing  incapacity  at  the  time  of  the 
transaction  in  suit  is  upon  the  party  assailing  the  act.  Chandler  v. 
Barrett,  21  La.  Ann.  58,  99  A.  D.  701;  Trimbo  v.  Trimbo,  47  Minn.  389; 
Stewart  v.  Flint,  59  Vt.  144. 

The  question  of  the  permanency  of  the  disease  is  one  for  the  jury. 
Townshend  v.  Townshend,  7  Gill  (Md.)  10;  Manley's  Ex'r  v.  Staples, 
65  Vt.  370. 

T74piicher   v.   Hickman,   132   Ala.   574,   90   A.   S.   R.   930;    Avery  v. 


§  gga  USE  AND  POSSESSION.  339 

the  acts  complained  of,  the  plaintiff  therefore  makes  a  prima 
facie  right  to  recover  in  an  action  of  replevin,  trover,  or  tres- 
pass, according  to  the  circumstances  of  the  case.776 

Clemons,  18  Conn.  306,  46  A.  D.  323;  Johnson  v.  Chicago  &  N.  W.  R. 
Co.,  77  Iowa,  666;  Alexander's  Succession,  18  La.  Ann.  337;  Millay  v. 
Butts,  35  Me.  139;  Linscott  v.  Trask,  35  Me.  150;  Horsey  v.  Knowles, 
74  Md.  602;  Magee  v.  Scott,  9  Cush.  (Mass.)  148,  55  A.  D.  49;  Mount 
v.  Harris,  1  Smedes  &  M.  (Miss.)  185,  40  A.  D.  89;  Dick  v.  Cooper, 
24  Pa.  217,  64  A.  D.  652;  Moon  v.  Hawks,  2  Aiken  (Vt.)  390,  16  A.  D. 
725;  Wausau  Boom  Co.  v.  Plumer,  35  Wis.  274. 

The  presumption  may  arise  in  criminal  cases.  People  v.  Oldham, 
111  Gal.  648;  Com.  v.  Blanchette,  157  Mass.  486. 

The  presumption  applies  with  reference  to  wild  animals  in  posses- 
sion. James  v.  Wood,  82  Me.  173,  8  L.  R.  A.  448.  Also  with  reference 
to  ships.  Bailey  v.  Steamer  New  World,  2  Cal.  370. 

Mere  possession  of  a  transcript  of  a  judgment  raises  no  presumption 
that  the  possessor  has  any  interest  entitling  him  to  sue  on  the  judg- 
ment. Tally  v.  Reynolds,  1  Ark.  99,  31  A.  D.  737. 

The  presumption  is  that  money  deposited  as  bail  for  a  prisoner  by 
a  third  person,  and  receipted  for  to  him,  belongs  to  him,  and  not  to 
the  prisoner.  McAlmond  v.  Bevington,  23  Wash.  315,  53  L.  R.  A.  597. 

The  assent  of  executors  to  a  specific  legacy  is  presumed,  where  the 
legatee  is  in  possession  under  it.  Schley  v.  Collis,  47  Fed.  250,  13  L. 
R.  A.  567. 

In  the  absence  of  evidence  on  the  question  of  possession,  the  pre- 
sumption is  that  it  is  in  the  holder  of  the  legal  title.  Reid  v.  State, 
20  Ga.  681. 

Ownership  and  operation  of  wagons  and  railroads.  If  the  name  of 
a  person  or  corporation  appears  on  wagons  or  rolling  stock,  the  pre- 
sumption is  that  he  or  it  is  the  owner  and  in  possession.  Pitts- 
burgh, F.  W.  &  C.  R.  Co.  v.  Callaghan,  157  111.  406;  Ryan  v.  Balti- 
more &  O.  R.  Co.,  60.  111.  App.  612;  Schweinfurth  v.  Dover,  91  111. 
App.  319.  And  see  Seaman  v.  Koehler,  122  N.  Y.  646;  Harlinger  v. 
N.  Y.  Cent.  &  H.  R.  R.  Co.,  15  Wkly.  Dig.  392,  affirmed  92  N.  Y. 
661;  Diel  v.  Henry  Zeltner  Brew.  Co.,  30  App.  Div.  291,  51  N.  Y. 
Supp.  930.  This  presumption  is  rebuttable.  Foster  v.  Wadsworth- 
Rowland  Co.,  168  111.  514;  Chicago  Gen.  St.  R.  Co.  v.  Capek,  68  111. 
App.  500.  It  is  also  presumed  that  cars  running  on  the  track  of  a 
particular  railroad  company  are  operated  by  it.  Walsh  v.  Mo.  Pac. 
R.  Co.,  102  Mo.  582;  Peabody  v.  Or.  R.  &  N.  Co.,  21  Or.  121,  12  L.  R. 
A.  823;  Ferguson  v.  Wis.  Cent.  R.  Co..  63  Wis.  145. 

"5  Replevin.     Schulenberg  v.   Harriman,- 21   Wall.    (U.    S.)    44,   59; 


340  LAW   OF   EVIDENCE.  g    89a 

The  presumption  is  sometimes  applied  to  transactions  be- 
tween husband  and  wife.770  Thus,  if  the  husband,  with  the 
wife's  consent  or  acquiescence,  uses  or  disposes  of  her  prop- 
erty as  his  own,  a  presumption  arises  that  she  has  given  it  to 
him.777 

The  rule  applies  to  negotiable  instruments  as  well  as  to  other 
property.  The  possession  of  such  an  instrument  payable  to  the 
holder  by  name,  or  to  bearer,  or  to  a  named  person  and  in- 
dorsed by  him,  gives  rise  to  a  presumption  that  the  holder  is  the 
owner  of  the  paper  and  entitled  to  recover  thereon.778 

Drummond  v.  Hopper,  4  Har.    (Del.)    327;    Clifton  v.  Lilley,  12  Tear 
130;  Andrews  v.  Beck,  23  Tex.  455. 

Trespass.  Gilson  v.  Wood,  20  111.  37.  Title  to  support  trespass  q.  c. 
f.,  see  page  345,  infra. 

Trover.  Webb  v.  Fox,  7  Term  R.  391,  397;  Goodwin  v.  Garr,  8  Gal. 
615;  Vining  v.  Baker,  53  Me.  544. 

See  page  343,  infra,  as  to  the  conclusiveness  of  the  presumption  in 
these  actions. 

776Farwell  v.  Cramer,  38  Neb.  61. 

If,  however,  the  wife  owns  a  farm,  and  the  husband  manages  it,  the 
presumption  is  that  she  owns  the  products.  Hill  v.  Chambers,  30  Mich. 
422,  428. 

777Kuhn  v.  Stansfleld,  28  Md.  210,  92  A.  D.  681;  Clark  v.  Patterson, 
158  Mass.  388,  35  A.  S.  R.  498.  And  see  McLure  v.  Lancaster,  24  S.  C. 
273,  58  A.  R.  259. 

The  presumption  applies  to  money  of  the  wife,  the  same  as  to  other 
effects.  Hauer's  Estate,  140  Pa.  420,  23  A.  S.  R.  245;  Beecher  v.  Wil- 
son, 84  Va.  813,  10  A.  S.  R.  883;  Bennett  v.  Bennett,  37  W.  Va.  396, 
38  A.  S.  R.  47.  And  see  Bromwell  v.  Bromwell,  139  111.  424;  Lishey 
v.  'Lishey,  2  Tenn.  Ch.  5;  Lyon  v.  Green  Bay  &  M.  R.  Co.,  42  Wis.  548. 
The  wife  may,  however,  permit  the  husband  to  take  possession  of  her 
funds  for  safe-keeping  or  investment  without  raising  a  presumption 
of  gift.  Springfield  Inst.  v.  Copeland,  160  Mass.  380,  39  A.  S.  R.  489; 
Bergey's  Appeal,  60  Pa.  408,  100  A.  D.  578. 

In  some  cases  a  view  contrary  to  the  text  seems  to  be  taken.  Adoue 
v.  Spencer,  62  N.  J.  Eq.  782,  90  A.  S.  R.  484;  Wormley's  Estate,  137 
Pa.  101. 

778  UNITED  STATES:  Brooklyn  City  &  N.  R.  Co.  v.  Nat.  Bank,  102  U 
S.  14,  38. 


§  89a  USE  AND  POSSESSION.  341 

The  presumption  arises  only  when  the  fact  of  possession  is 
unexplained.  If  the  surrounding  circumstances  make  it  as 

COLORADO:     Perot  v.  Cooper,  17  Colo.  80,  31  A.  S.  R.  258. 

ILLINOIS:  Gillham  v.  State  Bank,  2  Scam.  245,  35  A.  D.  105;  Comer 
v.  Comer,  120  111.  420. 

INDIANA:     Conwell  v.  Pumphrey,  9  Ind.  135,  68  A.  D.  611. 

IOWA:  Stoddard  v.  Burton,  41  Iowa,  582;  Bigelow  v.  Burnham,  90 
Iowa,  300,  48  A.  S.  R.  442. 

LOUISIANA:  Bolton  v.  Harrod,  9  Mart.  326,  13  A.  D.  306;  Squier  v. 
Stockton,  5  La.  Ann.  120,  52  A.  D.  583. 

MARYLAND:  Ellicott  v.  Martin,  6  Md.  509,  61  A.  D.  327;  Kunkel  v. 
Spooner,  9  Md.  462,  66  A.  D.  332. 

MASSACHUSETTS:  Pettee  v.  Prout,  3  Gray,  502,  63  A.  D.  778;  Hoi- 
comb  v.  Beach,  112  Mass.  450. 

MICHIGAN:  Barnes  v.  Peet,  77  Mich.  391;  Hovey  v.  Sebring,  24  Mich. 
232,  9  A.  R.  122. 

MINNESOTA:  Estes  v.  Levering  Shoe  Co.,  59  Minn.  504,  50  A.  S.  R. 
424  (statute). 

MISSISSIPPI:     Emanuel  v.  White,  34  Miss.  56,  69  A.  D.  385. 

NEBRASKA:     Saunders  v.  Bates,  54  Neb.  209. 

NEW  JERSEY:     Halsted's  Ex'rs  v.  Colvin,  51  N.  J.  Eq.  387. 

NEW  YORK:  Cruger  v.  Armstrong,  3  Johns.  Gas.  5,  2  A.  D.  126; 
James  v.  Chalmers,  6  N.  Y.  209. 

NORTH  CAROLINA:  Commercial  Bank  v.  Burgwyn,  108  N.  C.  62,  23 
A.  S.  R.  49;  Threadgill  v.  Anson  County  Com'rs,  116  N.  C.  616;  Pugh 
v.  Grant,  86  N.  C.  39. 

TEXAS:     Johnson  v.  Mitchell,  50  Tex.  212. 

This  presumption  seems  to  apply  to  certificates  of  corporate  stock 
properly  indorsed.  Walker  v.  Detroit  Transit  R.  Co.,  47  Mich.  338. 

The  presumption  does  not  apply  to  the  holder  of  a  negotiable  instru- 
ment payable  to  a  named  person  and  not  indorsed  by  him.  Welch  >. 
Lindo,  7  Cranch  (U.  S.)  159;  Turnley  v.  Black,  44  Ala.  159;  School 
Dist.  v.  Reeve,  56  Ark.  68;  Hull  v.  Conover's  Ex'rs,  35  Ind.  372;  Jones 
v.  Jones,  19  Ky.  L.  R.  1516,  43  S.  W.  412,  414;  Vastine  v.  Wilding,  45 
Mo.  89,  100  A.  D.  347;  Dodge  v.  Nat.  Exch.  Bank,  30  Ohio  St.  1;  Ross 
v.  Smith,  19  Tex.  171,  70  A.  D.  327.  And  see  Jackson  Paper  Mfg.  Co. 
v.  Commercial  Nat.  Bank,  199  111.  151,  93  A.  S.  R.  113;  Ball  v.  Hill, 
38  Tex.  237.  Contra,  Rubey  v.  Culbertson,  35  Iowa,  264  (semble) ; 
O'Keeffe  v.  First  Nat.  Bank,  49  Kan.  347,  33  A.  S.  R.  370;  Jackson  v. 
Love,  82  N.  C.  405,  33  A.  R.  685.  In  North  Carolina,  where  the  instru- 
ment is  not  indorsed  by  the  payee,  the  presumption  of  ownership 


342  LAW   OF   EVIDENCE.  §  89a 

probable  as  not  that  the  ownership  is  in  some  one  out  of  pos- 
session, then  the  possessor  is  not  presumed  to  be  the  owner.779 
For  instance,  the  possession  of  a  factor,  broker,  or  other  per- 
son who  openly  acts  as  agent  in  the  regular  course  of  his  busi- 
ness, may  be  referred  as  reasonably  to  ownership  in  a  prin- 
cipal as  to  ownership  in  himself,  and  therefore  no  presumption 
arises.780  So,  if  it  appears  that  the  person  in  possession  of 
property  wrongfully  seized  it  while  it  was  in  the  peaceable  pos- 
session of  another,  the  subsequent  possession  of  the  wrongdoer 
does  not  create  a  presumption  of  ownership  as  against  the  orig- 
inal possessor.781 

arising  from  possession  applies  in  favor  of  the  holder  as  against  the 
maker,  but  not  as  against  the  payee.  Holly  v.  Holly,  94  N.  C.  670. 

The  presumption  arises  with  reference  to  a  note  payable  to  a  named 
person  or  bearer,  and  placed  by  the  payee  in  the  hands  of  his  agent. 
Prima  facie,  the  agent  has  authority  to  collect  it.  Stiger  v.  Bent,  111 
111.  328;  Cone  v.  Brown,  15  Rich.  Law  (S.  C.)  262.  Contra,  Jackson  v. 
Bank,  92  Tenn.  154,  36  A.  S.  R.  81.  This  rule  is  otherwise  as  to  au- 
thority to  collect  a  nonnegotiable  bond.  Belt  v.  Wilson's  Adm'r,  6  J. 
J.  Marsh.  (Ky.)  495;  Brown  v.  Taylor's  Committee,  32  Grat.  (Va.) 
135.  And  it  does  not  apply  to  a  check  not  indorsed  by  the  payee. 
Jackson  Paper  Mfg.  Co.  v.  Commercial  Nat.  Bank,  199  111.  151,  93  A. 
S.  R.  113. 

Possession  of  a  negotiable  instrument  by  one  other  than  the  maker 
is  prima  facie  evidence  of  nonpayment.  Tisdale  v.  Maxwell,  58  Ala. 
40;  Turner  v.  Turner,  79  Cal.  565;  Stiger  v.  Bent,  111  111.  328;  Somer- 
vail  v.  Gillies,  31  Wis.  152. 

Presumption  of  purchase  in  good  faith  for  value  before  maturity, 
see  §  30 (e),  supra. 

Possession  of  note  as  evidence  of  delivery,  see  §  30  (c),  supra. 

779Rawley  v.  Brown,  71  N.  Y.  85;  N.  Y.  &  H.  R.  Co.  v.  Haws,  56  N. 
Y.  175. 

TSO  Skiff  v.  Stoddard,  63  Conn.  198,  21  L.  R.  A.  102;  Boisblanc's  Suc- 
cession, 32  La.  Ann.  109. 

Possession  by  an  agent  is  prima  facie  evidence  of  title  in  the  prin- 
cipal. Barton  v.  People,  135  111.  405,  25  A.  S.  R.  375;  Kunkel  v. 
Spooner,  9  Md.  462,  66  A.  D.  332.  And  see  Threadgill  v.  Anson  County 
Com'rs,  116  N.  C.  616. 


§  89a  USE  AND  POSSESSION.  343 

As  against  the  true  owner,  the  presumption  is  rebuttable. 
Its  effect  is  to  cast  on  him  the  burden  of  adducing  evidence 
tending  to  show  that  the  possessor  was  not  the  real  owner  of 
the  property.782  As  against  all  others  than  the  true  owner  "or 
those  claiming  under  him,  the  presumption  is  said  to  be  con- 
clusive; that  is  to  say,  it  is  a  rule  of  substantive  law  that  no 
one  but  the  true  owner  or  those  claiming  under  him  may  dis- 
pute a  possessor's  title.  Accordingly,  a  person  who  was  in 
lawful  possession  of  property  at  the  time  the  cause  of  action 
arose  may  ordinarily  recover  against  a  mere  wrongdoer  or 
trespasser  in  an  action  of  replevin,783  of  trover,784  or  of  tres- 

781  Cumberledge  v.  Cole,  44  Iowa,  181.     And  see  Weston  v.  Higgins, 
40  Me.  102. 

782  Bergen  v.  Riggs,  34  111.  170,  85  A.  D.  304;   Comer  v.  Comer,  120 
111.  420;  Linscott-v.  Trask,  35  Me.  150;  Magee  v.  Scott,  9  Gush.  (Mass.) 
148,  55  A.  D.  49;  Hovey  v.  Sebring,  24  Mich.  232,  9  A.  R.  122;  Mount 
v.  Harris,  1  Smedes  &  M.  (Miss.)  185,  40  A.  D.  89;  Karen's  Estate,  133 
Pa.  84.     And  see  Barnes  v.  Peet,  77  Mich.  391;  Cone  v.  Brown,  15  Rich. 
Law  (S.  C.)  262. 

The  true  owner  may  claim  the  property,  saving  money  or  negotiable 
instruments  properly  indorsed  or  transferable  by  delivery,  even  as 
against  a  purchaser  from  the  one  in  possession,  in  the  absence  of 
facts  creating  an  estoppel.  Wright  v.  Solomon,  19  Cal.  64,  79  A.  D. 
196;  Fawcett  v.  Osborn,  32  111.  411,  83  A.  D.  278;  Johnson  v.  Frisbie, 
29  Md.  76,  96  A.  D.  508;  Hanson  v.  Chiatovich,  13  Nev.  395;  Spraights 
v.  Hawley,  39  N.  Y.  441,  100  A.  D.  452;  Williams  v.  Merle,  11  Wend. 
(N.  Y.)  80,  25  A.  D.  604,  and  note;  Velsian  v.  Lewis,  15  Or.  539,  3  A. 
S.  R.  184;  Agnew  v.  Johnson,  22  Pa.  471,  62  A.  D.  303;  Carmichael  v. 
Buck,  10  Rich.  Law  (S.  C.)  332,  70  A.  D.  226. 

TBS  Van  Namee  v.  Bradley,  69  111.  299;  Moorman  v.  Quick,  20  Ind.  67; 
Van  Baalen  v.  Dean,  27  Mich.  104;  Summons  v.  Beaubien,  36  Mo.  307; 
Rogers  v.  Arnold,  12  Wend.  (N.  Y.)  30  (semble) ;  Cox  v.  Fay,  54  Vt. 
446.  Contra,  Schulenberg  v.  Harriman,  21  Wall.  (U.  S.)  44;  Loomis 
v.  Youle,  1  Minn.  175  (Gil.  150).  See,  also,  page  339,  supra. 

784  Armory  v.  Delamirie,  1  Strange,  505;  Webb  v.  Fox,  7  Term  R. 
391;  Sutton  v.  Buck,  2  Taunt.  302;  Cook  v.  Patterson,  35  Ala.  102; 
Carter  v.  Bennett,  4  Fla.  283;  Harker  v.  Dement,  9  Gill  (Md.)  7,  52  A. 
D.  670;  Burke  v.  Savage,  13  Allen  (Mass.)  408;  Bartlett  v.  Hoyt,  29 


344  LAW   OF   EVIDENCE.  §  89 'o 

pass,785  according  to  the  circumstances,  even  though  he  shows 
no  title;  and  the  plaintiff's  want  of  a  general  ownership  or  a 
special  ownership  other  than  that  arising  out  of  his  possession 
is  not  a  defense  unless  the  defendant  can  show  a  better  right. 
(b)  Real  property.  In  the  absence  of  other  evidence  of 
title,  peaceable  possession  of  real  estate  under  a  claim  of  right, 
though  not  for  a  period  sufficient  to  give  title  by  limitation 
or  prescription,  raises  a  presumption  of  ownership  in  the  oc- 
cupant.786 The  extent  of  the  ownership  which  is  presumed  de- 

N.  H.  317;  Duncan  v.  Spear,  11  Wend.  (N.  Y.)  54;  O'Brien  v.  Hilburn, 
22  Tex.  616.  See,  also,  page  339,  supra. 

In  North  Carolina,  mere  possession  will  justify  a  recovery  in  trover 
only  where  the  true  owner  is  unknown.  Hostler's  Adm'r  v.  Skull,  1 
N.  C.  183  (Tayl.  152),  3  N.  C.  (2  Hayw.)  179,  1  A.  D.  583;  Branch  v. 
Morrison,  50  N.  C.  (5  Jones)  16,  69  A.  D.  770. 

785  Nelson  v.  Cherrill,  1  Moore  &  S.  452,  8  Bing.  316;  Miller  v.  Kirby, 
74  111.  242;  Gilson  v.  Wood,  20  111.  37;  Staples  v.  Smith,  48  Me.  470; 
Perkins  v.  Weston,  3  Gush.  (Mass.)  549  (semble) ;  Boston  v.  Neat,  12 
Mo.  125;  Barren  v.  Cobleigh,  11  N.  H.  557,  35  A.  D.  505;  Buck  v.  Aikin, 
1  Wend.  (N.  Y.)  466,  19  A.  D.  535;  Carson  v.  Prater,  6  Cold.  (Tenn.) 
565;  Potter  v.  Washburn,  13  Vt.  558,  37  A.  D.  615.  See,  also,  page  339, 
supra. 

Evidence  of  title  to  support  trespass  q.  c.  f.,  see  page  345,  infra. 

786RiCard  v.  Williams,  7  Wheat.  (U.  S.)  59;  Hewes  v.  Glos,  170  111. 
436,  439;  Hunt  v.  Utter,  15  Ind.  318;  Hawkins  v.  Berkshire  County 
Com'rs,  2  Allen  (Mass.)  254;  Perry  v.  Weeks,  137  Mass.  584;  Bell  v. 
Skillicorn,  6  N.  M.  399;  Tuttle  v.  Jackson,  6  Wend.  (N.  Y.)  213,  21  A. 
D.  306;  Jackson  v.  Town,  4  Cow.  (N.  Y.)  599,  15  A.  D.  405;  Jackson 
v.  Denn,  5  Cow.  (N.  Y.)  200;  Schlichter  v.  Keiter,  156  Pa.  119,  22  L. 
R.  A.  161;  Phila.  &  R.  R.  Co.  v.  Obert,  109  Pa.  193;  Ward's  Heirs  v. 
Mclntosh,  12  Ohio  St.  231;  Austin  v.  Bailey,  37  Vt.  219,  86  A.  D.  703; 
Teass  v.  St.  Albans,  38  W.  Va.  1,  19  L.  R.  A.  802. 

In  California  and  Texas,  all  property  acquired  during  marriage  is 
presumed  to  belong  to  the  community.  Althof  v.  Conheim,  38  Cal.  230, 
99  A.  D.  363;  Morris  v.  Hastings,  70  Tex.  26,  8  A.  S.  R.  570. 

The  holder  of  the  legal  title  is  presumed  to  have  been  in  possession 
of  the  property,  in  the  absence  of  evidence  on  the  question.  Finch's 
Ex'rs  v.  Alston,  2  Stew.  &  P.  (Ala.)  83,  23  A.  D.  299,  302;  Miller  v. 
Fraley,  23  Ark.  735;  Bardeen  v.  Markstrum,  64  Wis.  613. 


USB  AND  POSSESSION.  345 

pends,  in  the  absence  of  evidence  to  the  contrary,  upon  the 
extent  of  the  occupant's  claim  of  right.787  If,  therefore,  the 
occupant  claims  ownership  in  fee,  the  presumption  is  that  he 
owns  the  fee.788 

As  against  a  subsequent  trespasser  who  does  not  connect 
himself  with  the  legal  title,  the  presumption  is  said  to  be  con- 
clusive, so  that  the  occupant  of  real  estate,  at  least  if  he  is  in 
possession  under  a  claim  of  right,  may  therefore  maintain  eject- 
ment789 or  trespass790  without  showing  title.  His  prior  posses- 

787  See  Lincoln  v.  Thompson,  75  Mo.  613. 

"sRicard  v.  Williams,  7  Wheat.  (U.  S.)  59;  Jackson  v.  Porter,  1 
Paine,  457,  Fed.  Cas.  No.  7,143;  Ward's  Heirs  v.  Mclntosh,  12  Ohio  St. 
231. 

In  the  absence  of  evidence  to  the  contrary,  possession  is  prima  facie 
evidence  of  title  in  fee.  Asher  v.  Whitlock,  L.  R.  1  Q.  B.  1;  Day  v. 
Alverson,  9  Wend.  (N.  Y.)  223. 

789  ENGLAND:  Davison  v.  Gent,  1  Hurl.  &  N.  744;  Asher  v.  Whitlock, 
L.  R.  1  Q.  B.  1. 

ALABAMA:  Eakin  v.  Brewer,  60  Ala.  579;  Wilson  v.  Glenn,  68  Ala. 
383;  McCall  v.  Pryor,  17  Ala.  533. 

ARKANSAS:     Jacks  v.  Dyer,  31  Ark.  334. 

CALIFORNIA:  Plume  v.  Seward,  4  Cal.  94,  60  A.  D.  599;  Hutchinson 
v.  Perley,  4  Cal.  33,  60  A.  D.  578;  Hubbard  v.  Barry,  21  Cal.  321;  Pot- 
ter v.  Knowles,  5  Cal.  87. 

FLORIDA:     Seymour  v.  Creswell.  18  Fla.  29. 

GEORGIA:  Jones  v.  Easley,  53  Ga.  454;  Doe  d.  Johnson  v.  Lancaster, 
5  Ga.  39;  Jones'  Adnrrs  v.  Nunn,  12  Ga.  469;  Bagley  v.  Kennedy,  85 
Ga.  703. 

MISSISSIPPI:  Kerr  v.  Farish,  52  Miss.  101;  Hicks  v.  Steigleman,  49 
Miss.  377. 

MISSOURI:     Crockett  v.  Morrison.  11  Mo.  3. 

NEW  JERSEY:     Den  d.  Cain  v.  McCann.  3  N.  J.  Law,  331,  4  A.  D.  384. 

NEW  YORK:  Day  v.  Alverson.  9  Wend.  223;  Jackson  v.  Harder,  4 
Johns.  (N.  Y.)  202,  4  A.  D.  262. 

OHIO:     Newman's  Lessee  v.  Cincinnati,  18  Ohio,  323. 

PENNSYLVANIA:     Hoey  v.  Furman,  1  Pa.  295. 

VERMONT:     Reed  v.  Shepley,  6  Vt.  602;   Warner  v.  Page,  4  Vt.  291, 

24  A.  D.  607. 

WISCONSIN:     Elofrson   v.  Lindsay,  90  Wis.  203;    Bates  v.  Campbell 

25  Wis.  613. 


346  LAW   OF   EVIDENCE.  §   9Qa 

sion  entitles  him  to  recover.  It  should  be  observed  in  this 
connection  that  conclusive  presumptions,  so  called,  are  not  true 
presumptions,  but  rules  of  substantive  law.191 

§  90.    Presumption  of  lost  grant  from  circumstantial  evidence. 

(a)  General  rules.  It  has  been  seen  that,  in  the  absence  of 
other  evidence  of  title,  possession  raises  a  presumption  of  own- 
ership in  the  occupant.792  If,  however,  the  title  appears  to 
be  in  some  one  else,  the  occupant  is  under  the  necessity  of  ad- 
ducing other  evidence  of  his  own  title  than  the  mere  fact  'of 
his  possession.793  A  conveyance  to  the  occupant  or  some  one 
of  his  predecessors  in  the  claim  may  be  proved  by  indirect  or 

In  some  states,  however,  mere  possession  will  not  sustain  ejectment 
unless  it  has  continued  so  long  as  to  give  title  under  the  statute  of 
limitations.  Doe  d.  Jefferson  v.  Howell,  1  Houst.  (Del.)  178. 

The  possession  must  be  actual.  Seymour  v.  Creswell,  18  Fla.  29; 
Burke  v.  Hammond,  76  Pa.  172;  Wilson  v.  Palmer,  18  Tex.  592.  But 
one  may  maintain  ejectment,  even  though  he  has  acquired  and  held 
possession  not  in  person,  but  only  through  a  tenant  claiming  under 
him.  McLawrin  v.  Salmons,  11  B.  Mon.  (Ky.)  96,  52  A.  D.  563. 

790  Elliott  v.  Kemp,  7  Mees.  &  W.  306,  312  (semble) ;  Graham  v.  Peat, 
1  East,  244;  Finch's  Ex'rs  v.  Alston,  2  Stew.  &  P.   (Ala.)   83,  23  A.  D. 
299;  Duncan  v.  Potts,  5  Stew.  &  P.  (Ala.)  82,  24  A.  D.  766;  Wilsons  v. 
Bibb,  1  Dana  (Ky.)  7,  25  A.  D.  118;  Heath  v.  Williams,  25  Me.  209,  43 
A.  D.  265;    Hayward  v.  Sedgley,  14  Me.  439,  31  A.  D.   64;    Currier  v. 
Gale,  9  Allen  (Mass.)  522;  Wendell  v.  Blanchard,  2  N.  H.  456;   Evert- 
son  v.  Sutton,  5  Wend.   (N.  Y.)   281,  21  A.  D.  217;   Clay  v.  St.  Albans, 
43  W.  Va.  539,  64  A.  S.  R.  883. 

Evidence  of  title  to  support  trespass  to  personal  property,  see  pages 
339,  343,  supra. 

Trespass  on  the  case.  Allen  v.  McCorkle,  3  Head  (Tenn.)  181; 
Moore  v.  Chicago,  M.  &  St.  P.  R.  Co.,  78  Wis.  120. 

791  See  page  343,  supra,  as  to  the  analogous  rule  as  to  possession  ot 
personal  property. 

As  to  conclusive  presumptions,  so  called,  in  general,  see  §  12  (a)  ,. 
supra. 

792  Section  89 (b),  supra. 

793  Cah.il!  v.  Cahill,  75  Conn.  522,  60  L.  R.  A.  706. 


§  90a  USE  AND  POSSESSION.  347 

circumstantial  evidence,  as  well  as  by  production  of  the  title 
deeds  or  authenticated  copies  or  records  of  them.  In  thus 
proving  a  conveyance,  ancient  possession  under  a  claim  of 
right  is  an  important  factor,  and  may,  in  connection  with 
other  circumstances,  justify  the  jury  in  presuming,  as  a  mat- 
ter of  fact,  that  the  legal  owner  or  some  one  of  his  predeces- 
sors has,  by  a  deed  which  has  been  lost,  conveyed  the  property 
to  the  occupant  or  some  one  of  those  under  whom  he  claims.794 
This  presumption  is  often  applied  in  a  class  of  cases  where 

794  ENGLAND:  Tenny  v.  Jones,  3  Moore  &  S.  472;  Goodwin  v.  Baxter, 
2  W.  Bl.  1228. 

UNITED  STATES:  Fletcher  v.  Fuller.  120  U.  S.  534;  Ricard  v.  Wil- 
liams, 7  Wheat.  59;  Hurst's  Lessee  v.  McNeil,  1  Wash.  C.  C.  70,  Fed. 
Cas.  No.  6.936. 

CONNECTICUT:  Cahill  v.  Cahill,  75  Conn.  522,  60  L.  R.  A.  706;  Bunce 
v.  Wolcott,  2  Conn.  27. 

ILLINOIS:     Jefferson  County  v.  Ferguson,  13  111.  33. 

INDIANA:     Nelson  v.  Fleming,  56  Ind.  310. 

MAINE:     Farrar  v.  Merrill,  1  Me.  17. 

MASSACHUSETTS:  Melvin  v.  Locks  &  Canals  on  Merrimack  River,  17 
Pick.  255,  16  Pick.  137;  White  v.  Loring,  24  Pick.  319. 

MISSOUBI:  Newman  v.  Studley,  5  Mo.  291;  McNair  v.  Hunt,  5  Mo. 
301;  Brown  v.  Oldham,  123  Mo.  621. 

NEW  HAMPSHIRE:     Wendell  v.  Moulton,  26  N.  H.  41. 

NEW  YORK:  Ham  v.  Schuyler.  4  Johns.  Ch.  1;  Jackson  v.  McCall, 
10  Johns.  377,  6  A.  D.  343. 

OHIO:     Courcier  v.  Graham,  1  Ohio,  330,  349. 

PENNSYLVANIA:  Kingston  v.  Lesley,  10  Serg.  &  R.  383;  Burke  v. 
Hammond,  76  Pa.  172;  -Carter  v.  Tinicum  Fishing  Co.,  77  Pa.  310. 

SOUTH  CAROLINA:     Riddlehoover  v.  Kinard,  1  Hill  Eq.  376. 

VERMONT:  Townsend  v.  Downer's  Adm'r,  32  Vt.  183;  Sellick  v. 
Starr,  5  Vt.  255;  University  of  Vt.  v.  Reynold's  Ex'r,  3  Vt.  542,  23  A. 
D.  234. 

The  presumption  may  be  indulged,  as  between  the  parties  at  least, 
even  though  the  conveyance  is  of  a  kind  which  falls  within  the  scope 
of  the  recording  acts.  Ryder  v.  Hathaway,  21  Pick.  (Mass.)  298,  303. 

A  will  and  administration  of  the  decedent's  estate  may  be  presumed 
from  long  lapse  of  time  and  other  circumstances.  Desverges  v.  Des- 
verges,  31  Ga.  753;  Maverick  v.  Austin,  1  Bailey  (S.  C.)  59. 


348  LAW   OF   EVIDENCE.  §  9Qa 

one  long  in  possession  of  land  proves  a  right  to  the  beneficial 
enjoyment  of  the  property.  A  formal  conveyance  to  him  from 
the  titular  owner  may  oftentimes  be  presumed.795  Thus,  in  all 
cases  where  trustees  ought  to  have  conveyed  to  the  beneficial 
owner,  it  may  be  presumed  that  they  have  conveyed  accord- 
ingly.796 So,  the  presumption  may  be  indulged  in  regard  to 
deeds  of  partition797  and  conveyances  from  vendor  to  pur- 
chaser.798 It  does  not  arise,  however,  unless  the  possessor 
shows  a  title  which  is  good  in  substance,  though  wanting  in 
some  collateral  matter  necessary  to  make  it  complete  in  point 
of  form;799  and  the  possession  must  have  been  consistent  with 
the  nature  of  the  conveyance  which  the  possessor  claims.800 

795  Doe  d.  Burdett  v.  Wrighte,  2  Barn.  &  Aid.  710;    Emery  v.  Gro- 
cock,  Madd.  &  Gel.  54;  Cooke  v.  Soltan,  2  Sim.  &  S.  154;   Normant  v. 
Eureka  Co.,  98  Ala.  181,  39  A.  S.  R.  45;   Vandyck  v.  Van  Beuren,  1 
Caines   (N.  Y.)   84;   Emans  v.  Turnbull,  2  Johns.  (N.  Y.)   313,  3  A.  D. 
427. 

796  Doe  d.  Bowerman  v.  Sybourn,  7  Term  R.  2 ;   England  v.  Slade,  4 
Term  R.  682;   Hillary  v.  Waller,  12  Ves.  239;   Doggett  v.  Hart,  5  Fla. 
215,  58  A.  D.  464;  Matthews  v.  Ward,  10  Gill  &  J.  (Md.)  443,  455  (sem- 
ble) ;  Moore  v.  Jackson,  4  Wend.   (N.  Y.)   58;   Jackson  v.  Cole,  4  Cow. 
(N.  Y.)    587;    Jackson  v.  Moore,  13  Johns.    (N.  Y.)    513,  7  A.  D.  398; 
McCullough  v.  Wall,  4  Rich.  Law   (S.  C.)   68,  53  A.  D.  715;   Howell  v. 
House,  2  Const.   (S.  C.)  80;   Marr's  Heirs  v.  Gilliam,  1  Cold.   (Tenn.) 
488;    Aikin  v.   Smith,    1    Sneed    (Tenn.)    304;    Townsend   v.    Downer's 
Adm'r,  32  Vt.  183,  200,  205.     Presumption  of  extinguishment  of  trust, 
see  note  702,  supra. 

797  Hepburn  v.   Auld,   5   Cranch    (U.   S.)    262;    Jackson  v.   Miller,   6 
Wend.  (N.  Y.)  228,  21  A.  D.  316;  Jackson  v.  Woolsey,  11  Johns.  (N.  Y.) 
446.     And   see   Russell's   Heirs   v.    Marks'   Heirs,   3    Mete.    (Ky.)    37; 
Munroe  v.  Gates,  48  Me.  463. 

798  Downing's  Heirs  v.  Ford,  9  Dana   (Ky.)    391;   Chiles  v.  Conley's 
Heirs,  2  Dana  (Ky.)   21;   Nixon's  Heirs  v.  Carco's  Heirs,  28  Miss.  414, 
431;   Briggs  v.  Prosser,  14  Wend.   (N.  Y.)   227;   Jackson  v.  Murray,  7 
Johns.  (N.  Y.)  5;  Duke  v.  Thompson,  16  Ohio,  34;  Grimes  v.  Bastrop, 
26  Tex.  310   (semble). 

799  Langley  v.  Sneyd,  1  Sim.  &  S.  45;  Doe  d.  Hammond  v.  Cooke,  6 
Bing.  174;    Hodsden   v.  Staple,   2   Term  R.   684;    Keene  v.   Deardon,   8 


§  90a  USE  AND  POSSESSION.  349 

The  statutes  of  limitation  have  not  superseded  the  presump- 
tion of  lost  grant,801  and  it  may  arise  even  though  the  legal 
owner's  right  to  recover  the  property  has  not  been  lost  by  lim- 
itation or  prescription.802 

What  gives  rise  to  the  presumption  is  long  possession  in 
connection  with  other  circumstances.  Possession  alone  does 
not  found  a  presumption  of  lost  grant  unless  it  has  continued 
for  such  a  length  of  time  and  under  such  circumstances  as  to 
give  the  occupant  title  by  limitation  or  prescription.803 

As  between  individual  claimants  of  lands,  the  presumption 
may  arise  in  favor  of  a  grant  from  the  state  as  well  as  from 
an  individual.804 

East,  248;  Doggett  v.  Hart,  5  Fla.  215,  58  A.  D.  464;  Schauber  v.  Jack- 
son, 2  Wend.  (N.  Y.)  13,  36;  Jackson  v.  Miller,  6  Wend.  (N.  Y.)  228, 
21  A.  D.  316;  Marr's  Heirs  v.  Gilliam,  1  Cold.  (Tenn.)  488:  Beach  v. 
Beach,  14  Vt.  28,  39  A.  D.  204;  Townsend  v.  Downer's  Adm'r,  32  Vt. 
183. 

soo  Doe  d.  Hammond  v.  Cooke,  6  Bing.  174,  179;  Nieto's  Heirs  v. 
Carpenter,  21  Gal.  455;  Colvin  v.  Warford,  20  Md.  357;  Townsend  v. 
Downer's  Adm'r,  32  Vt.  183,  193,  201,  208. 

«oi  Stamford  v.  Dunbar,  13  Mees.  &  W.  822;  Fletcher  v.  Fuller,  120 
U.  S.  634,  550;  Ricard  v.  Williams,  7  Wheat.  (U.  S.)  59,  110. 

soz  Bealey  v.  Shaw,  6  East,  208,  215;  Hanmer  v.  Chance,  4  De  Gex, 
J.  &  S.  626;  Fletcher  v.  Fuller,  120  U.  S.  534,  550;  Ricard  v.  Williams, 
7  Wheat.  (U.  S.)  59,  110;  Clark  v.  Faunce,  4  Pick.  (Mass.)  245;  Marr's 
Heirs  v.  Gilliam,  1  Cold.  (Tenn.)  488;  Townsend  v.  Downer's  Adm'r, 
32  Vt.  183.  See,  however,  Day  v.  Williams,  2  Cromp.  &  J.  460. 

soa  Eldridge  v.  Knott,  Cowp.  214;  Hanmer  v.  Chance,  4  De  Gex,  J.  & 
S.  626;  Sumner  v.  Child,  2  Conn.  607;  Bunce  v.  Wolcott,  2  Conn.  27, 
31;  Lloyd  v.  Gordon,  2  Har.  &  McH.  (Md.)  254;  Clark  v.  Faunce,  4 
Pick.  (Mass.)  245;  Townsend  v.  Downer's  Adm'r,  32  Vt.  183. 

It  has  been  held,  however,  that  in  cases  not  within  the  statute  of 
limitations,  grants  may  be  presumed  from  mere  length  of  possession, 
unaccompanied  by  auxiliary  circumstances.  Townsend  v.  Downer's 
Adm'r,  32  Vt.  183. 

804  Lopez  v.  Andrew,  3  Man.  &  R.  329,  note;  Roe  d.  Johnson  v.  Ire- 
land, 11  East,  280;  Jarboe  v.  McAtee's  Heirs,  7  B.  Mon.  (Ky.)  279,  280; 
Crocker  v.  Pendleton,  23  Me.  339;  Jackson  v.  McCall,  10  Johns.  (N. 


350  LAW   OF   EVIDENCE.  §  9Qb 

(b)  Nature  of  presumption.  The  presumption  is  one  of  fact, 
not  one  of  law.  It  is  therefore  not  binding  on  the  jury,  but  is 
merely  a  permissible  inference  which  they  may  draw  or  reject, 
as  to  them  seems  reasonable  and  proper,  and  it  is,  of  course,  re- 
buttable.805  It  has  been  said,  however,  that  while  the  evidence 
must  show  that  a  conveyance  as  claimed  was  legally  possible,806 
yet  that  it  is  not  necessary  for  the  jury  to  believe  that  a  con- 
veyance was  in  point  of  fact  executed,  and  that  it  is  sufficient 
if  the  evidence  leads  to  the  conclusion  that  the  conveyance 
might  have  been  executed.807 

Y.)  377,  6  A.  D.  343;  Mather  v.  Trinity  Church,  3  Serg.  &  R.  (Pa.) 
509,  8  A.  D.  663;  Grimes  v.  Bastrop  Corp.,  26  Tex.  310.  See,  however, 
Oaksmith's  Lessee  v.  Johnston,  92  U.  S.  343. 

sos  Doe  d.  Fenwick  v.  Reed,  5  Barn.  &  Aid.  232;  Livett  v.  Wilson,  3 
Bing.  115;  Tenny  v.  Jones,  3  Moore  &  S.  472,  484;  Lincoln  v.  French, 
105  U.  S.  614;  Ricard  v.  Williams,  7  Wheat.  (U.  S.)  59,  110;  Hurst's 
Lessee  v.  McNeil,  1  Wash.  C.  C.  70,  Fed.  Cas.  No.  6,936;  Bunce  v. 
Wolcott,  2  Conn.  27,  31;  Chiles  v.  Conley's  Heirs,  2  Dana  (Ky.)  21; 
Grimes  v.  Bastrop  Corp.,  26  Tex.  310,  314;  Townsend  v.  Downer's 
Adm'r,  32  Vt.  183.  Contra,  Hillary  v.  Waller,  12  Ves.  239.  Accord- 
ingly, a  lost  grant  will  not  be  presumed  where  the  origin  of  the  claim- 
ant's right  is,  in  fact,  known,  and  negatives  a  grant  as  claimed.  At- 
torney-General v.  Ewelme  Hospital,  17  Beav.  366;  Nieto's  Heirs  v. 
Carpenter,  21  Cal.  455;  Colvin  v.  Warford,  20  Md.  357,  396  (semble) ; 
Claflin  v.  Boston  &  A.  R.  Co.,  157  Mass.  489;  Attorney  General  v. 
Revere  Copper  Co.,  152  Mass.  444,  9  L.  R.  A.  510. 

In  some  cases  the  presumption  seems  to  be  regarded  as  a  rebuttable 
presumption  of  law,  which  the  jury  are  obliged  to  indulge,  in  the  ab- 
sence of  evidence  to  the  contrary.  Fletcher  v.  Fuller,  120  U.  S.  534, 
550. 

SOB  Williams  v.  Donell,  2  Head  [Tenn.]  694. 

A  grant  may  not  be  presumed  where  it  would  have  been  unlawful 
or  beyond  the  power  of  the  alleged  grantor.  Bunce  v.  Wolcott,  2  Conn. 
27,  31  (semble);  Hunt  v.  Hunt,  3  Mete.  (Mass.)  175,  37  A.  D.  130,  133; 
Watkins  v.  Peck,  13  N.  H.  360,  40  A.  D.  156;  Donahue  v.  State,  112  N. 
Y.  142;  Doe  d.  Jackson  v.  Hillsborough  Com'rs,  18  N.  C.  (1  Dev.  &  B.) 
177;  University  of  Vt.  v.  Reynold's  Ex'r,  3  Vt.  542,  23  A.  D.  234,  244. 

SOT  Fletcher  v.  Fuller,  120  U.  S.  534,  547;  Dunn  v.  Eaton.  92  Tenn. 
743. 


§  91a  USE  AND  POSSESSION.  351 

§  91.    Presumption  of  lost  grant  arising  from  adverse  user  or 
possession — Prescription. 

(a)  Preliminary  considerations.  We  have  seen  that,  in  the 
absence  of  other  evidence  of  title,  possession  of  real  estate 
gives  rise  to  a  presumption  of  ownership  in  the  occupant,808 
but  that,  where  the  legal  title  appears  to  be  outstanding,  the 
occupant  must  adduce  other  evidence  of  title  than  that  arising 
from  his  possession.  We  have  seen  also  that  this  evidence  may 
consist  of  possession  coupled  with  other  circumstances  justify- 
ing an  inference  of  a  conveyance  by  the  legal  owner  or  some 
one  of  his  predecessors  to  the  occupant  or  some  one  under 
whom  he  claims;  but  that  possession  alone  will  not  justify  a 
presumption  of  lost  grant  unless  it  has  continued  long  enough 
to  give  title  by  limitations  or  prescription.809  With  title  by 
limitations  we  are  not  concerned,  since  it  is  only  occasionally 
spoken  of  as  founded  on  a  presumption  of  lost  grant,  and  is 
generally  regarded  in  its  true  light,  namely,  as  a  title  based 
on  a  rule  of  law  whereby  adverse  possession  for  the  statutory 
period  divests  the  legal  owner  of  his  title  and  vests  it  abso- 
lutely in  the  occupant.  The  present  discussion  is  concerned 
with  prescription,  or  the  so-called  presumption  of  lost  grant 
arising  from  adverse  possession  or  user  in  those  cases  where, 
for  one  reason  or  another,  the  statutes  of  limitation  do  not 
apply. 

At  the  outset  it  is  necessary  clearly  to  define  the  distinction 
between  title  by  adverse  possession  and  title  by  prescription. 
To  quote  from  a  late  work  on  the  subject:  "There  were,  even 
in  early  times,  numerous  statutes  adopted  in  England  limit- 
ing the  time  within  which  an  action  could  be  brought  on  ac- 
count of  a  disseisin  of  land,  but  these  differed  from  the  stat- 

sos  See  §  89 (b),  supra. 
SOB  See  §  90 (a),  supra. 


352  LAW   OP   EVIDENCE.  §   91a 

utes  of  the  present  day  in  that,  instead  of  naming  a  certain 
number  of  years  before  the  institution  of  the  action  beyond 
which  no  disseisin  could  be  alleged,  they  named  a  certain  year 
back  of  which  the  pleader  could  not  go.  The  last  statute  which 
adopted  this  method  of  fixing  the  period  of  limitation  was  St. 
Westminster  I.  c.  39  [3  Edw.  I.,  A.  D.  1275],  which  forbade  the 
seisin  of  an  ancestor  to  be  alleged  in  a  writ  of  right  prior  to 
the  beginning  of  the  reign  of  Richard  I.  [A.  D.  1189],  and  for 
other  writs  fixed  the  year  1217.  Thus,  under  this  statute,  at 
the  time  of  its  passage,  the  period  of  limitation  for  some  writs 
was  fifty-eight  years,  and  this  period  was  lengthened,  as  time 
went  on  without  any  change  in  the  law,  so  that  it  exceeded 
three  hundred  years,  when,  by  32  Hen.  VIII.  c.  2  [A.  D.  1540] , 
a  change  was  made,  and  the  modern  method  was  adopted  of 
fixing  a  certain  number  of  years  within  which  the  action  must 
be  brought.  This  last  statute,  however,  applied  only  to  the 
old  real  actions,  and,  the  action  of  ejectment  having  to  a 
great  extent  taken  their  place,  St.  21  Jac.  I.  c.  16  [A.  D.  1623], 
was  passed,  which  provided  that  no  person  should  thereafter 
make  any  entry  into  lands,  tenements,  or  hereditaments  but 
within  twenty  years  next  after  his  or  their  right  or  title  shall 
have  accrued.  This  statute,  while  not  in  terms  applying  to 
the  action  of  ejectment,  did  so  in  effect  by  barring  the  right  of 
entry  on  which  the  action  depended.  This  statute  of  James 
I.  is  that  on  which  the  statutes  in  this  country  are  more  or 
less  modeled.  It  has  been  superseded  in  England  by  later 
statutes,  which  tend  to  bar  an  action  to  recover  land  after 
the  statutory  period  has  elapsed  without  reference  to  the 
character  of  the  possession  of  the  defendant  in  the  action. 
In  that  country  the  problem  is  much  simplified,  however,  by 
the  absence  of  wild  and  unsettled  lands.  In  this  country  many 
perplexing  and  difficult  questions  have  arisen  under  the  stat- 
utes as  to  the  character  of  the  possession  of  the  land  which 


§   Qlb  USE  AND  POSSESSION.  353 

one  must  have  for  the  statutory  period  in  order  that  the  rights 
of  the  original  owner  may  be  barred.  A  possession  for  the 
statutory  period  which  is  sufficient  to  bar  an  action  to  recover 
the  land  is  known  as  'adverse  possession,'  and  one  who  thus 
acquires  rights  in  the  land  as  against  the  former  owner  is 
said  to  acquire  title  by  'adverse  possession.'  "81° 

"Though  the  statute  of  Westminster  L,  establishing  a  date 
back  of  which  the  pleader  could  not  go,  applied  to  actions  for 
the  recovery  of  the  land  only,  and  not  to  those  for  the  recov- 
ery of  incorporeal  things,  'the  judges,  with  that  assumption 
of  legislative  authority  which  has  at  times  characterized  our 
judicature,  proceeded  to  apply  the  rule  as  to  prescription  es- 
tablished by  the  statute  to  incorporeal  hereditaments,  and, 
among  others,  to  easements.'  Subsequently,  when,  by  the 
statutes  of  32  Hen.  VIII.  c.  2,  and  21  Jac.  I.  c.  16,  the  time 
for  bringing  a  writ  of  right  or  a  possessory  action  to  recover 
land  was  reduced  to  sixty  and  twenty  years,  respectively,  it 
might  have  been  expected  that  the  judges  would,  as  in  the 
case  of  the  earlier  act,  apply  the  analogy  of  these  acts  to 
incorporeal  things.  This,  however,  it  seems,  they  did  not  do, 
but  they  effected  the  same  end  by  the  adoption  of  the  fiction 
that  a  grant  of  the  right  would  be  presumed  if  it  had  been 
exercised  for  a  period  of  twenty  years;  this  doctrine  of  a 
lost  grant  being  in  reality  prescription,  under  another  name, 
shortened  in  analogy  to  the  period  of  limitation  fixed  by  the 
statute  of  James. '  '811 

(b)  Presumption  and  its  extent.  If  a  person  exercises  ad- 
versely any  proprietary  right  in  another's  land  for  a  period 
necessary  to  give  title  to  the  land  itself  by  limitations,  a  pre- 
sumption is  said  to  arise  that  the  right  was  created  by  a  prop- 

sio  Tiffany,  Real  Prop.  §  436. 
8n  Tiffany,  Real  Prop.  §  445. 

Hammon,  Ev. — 23. 


354  LAW   OF  EVIDENCE. 

er  instrument  which  has  been  lost,  and  the  title  so  acquired  is 
termed  a  title  by  prescription.812     The  presumption  is  inde- 

812  Franchise.  Jenkins  v.  Harvey,  1  Cromp.,  M.  &  R.  877.  Corporate 
franchises,  see  §  28 (a),  supra. 

Right  to  lateral  support.     Dalton  v.  Angus,  6  App.  Gas.  740. 

Mining  rights.  Arnold  v.  Stevens,  24  Pick.  (Mass.)  106,  35  A.  D. 
305. 

Pew  rights.     Brattle  Square  Church  v.  Bullard,  2  Mete.  (Mass.)  363. 

Right  of  way.  Jesse  French  P.  &  O.  Co.  v.  Forbes,  129  Ala.  471,  87 
A.  S.  R.  71;  Hill  v.  Crosby,  2  Pick.  (Mass.)  466,  13  A.  D.  448;  Lanier 
v.  Booth,  50  Miss.  410;  Cholla-Potosi  Min.  Co.  v.  Kennedy,  3  Nev.  361, 
93  A.  D.  409;  Smith  v.  Putnam,  62  N.  H.  369;  Corning  v.  Gould,  16 
Wend.  (N.  Y.)  531;  Nicholls  v.  Wentworth,  100  N.  Y.  455;  Reimer  v. 
Stuber,  20  Pa.  458.  59  A.  D.  744. 

Water  rights.  Magor  v.  Chadwick,  11  Adol.  &  E.  571;  Bealey  v. 
Shaw,  6  East,  208,  215;  Wright  v.  Howard,  1  Sim.  &  S.  190;  Balston 
v.  Bensted,  1  Camp.  463;  Tyler  v.  Wilkinson,  4  Mason,  397,  Fed.  Gas. 
No.  14,312;  Legg  v.  Horn,  45  Conn.  409;  Ingraham  v.  Hutchinson,  2 
Conn.  584;  Wallace  v.  Fletcher,  30  N.  H.  434;  Watkins  v.  Peck,  13  N. 
H.  360,  40  A.  D.  156;  Bullen  v.  Runnels,  2  N.  H.  255,  9  A.  D.  55;  Camp- 
bell v.  Smith,  8  N.  J.  Law,  140,  14  A.  D.  400;  Or.  Const.  Co.  v.  Allen 
Ditch  Co.,  41  Or.  209,  93  A.  S.  R.  701;  Mitchell  v.  Walker,  2  Aik.  (Vt.) 
266,  16  A.  D.  710;  Elaine  v.  Ray,  61  Vt.  566.  And  see  Strickler  v.  Todd, 
10  Serg.  &  R.  (Pa.)  63.  13  A.  D.  649. 

Right  to  flood  lands.  Wright  v.  Moore,  38  Ala.  593,  82  A.  D.  731; 
Shahan  v.  Ala.  G.  S.  R.  Co.,  115  Ala.  181,  67  A.  S.  R.  20;  Totel  v. 
Bonnefoy,  123  111.  653,  5  A.  S.  R.  570;  Gregory  v.  Bush,  64  Mich.  37, 
8  A.  S.  R.  797;  Swan  v.  Munch,  65  Minn.  500,  60  A.  S.  R.  491;  Mueller 
v.  Fruen,  36  Minn.  273;  Alcorn  v.  Sadler,  71  Miss.  634,  42  A.  S.  R.  484; 
Carlisle  v.  Cooper,  19  N.  J.  Eq.  256;  Hall  y.  Augsbury,  46  N.  Y.  622; 
Mills  v.  Hall,  9  Wend.  (N.  Y.)  315,  24  A.  D.  160;  Emery  v.  Raleigh  & 
G.  R.  Co.,  102  N.  C,  209,  11  A.  S.  R.  727;  R.  Co.  v.  Mossman,  90  Tenn. 
157,  25  A.  S.  R.  670;  Charnley  v.  Shawano  W.  P.  &  R.  I.  Co.,  109  Wis. 
563,  53  L.  R.  A.  895;  Rooker  v.  Perkins,  14  Wis.  79. 

Drainage  rights.  White  v.  Chapin,  12  Allen  (Mass.)  516;  Pitzman 
v.  Boyce,  111  Mo.  387,  33  A.  S.  R.  536;  Earl  v.  De  Hart,  12  N.  J.  Eq. 
280,  72  A.  D.  395. 

Fishing  rights.  Melvin  v.  Whiting,  10  Pick.  (Mass.)  295,  20  A.  D. 
524;  Cobb  v.  Davenport,  32  N.  J.  Law,  369.  And  see  Leconfield  v. 
Lonsdale,  L.  R.  5  C.  P.  657;  Carter  v.  Tinicum  Fish.  Co.,  77  Pa.  310. 

Ferry  rights.  Smith  v.  Harkins,  38  N.  C.  (3  Ired.  Eq.)  613.  44  A. 
D.  83;  Bird  v.  Smith,  8  Watts  (Pa.)  434,  34  A.  D.  483. 


g  915  USE  AND  POSSESSION.  355 

pendent  of  the  statute  of  limitations,  and  applies  to  subjects 
not  within  or  expressly  excluded  from  the  operation  of  the 
statute.813  Provided  that  the  right  claimed  does  not  constitute 
a  public  nuisance,  the  presumption  may  be  indulged  in  favor 

Right  to  cut  ice.    Hoag  v.  Place,  93  Mich.  450. 

Right  to  take  water  from  well.     Smith  v.  Putnam,  62  N.  H.  369. 

Wharfage  rights.     Nichols  v.  Boston,  98  Mass.  39,  93  A.  D.  132. 

A  grant  upon  condition  that  the  grantee  shall  perform  certain  acts 
may  be  presumed  from  an  adverse  user  of  twenty  years,  and  perform- 
ance of  .those  acts.  Watkins  v.  Peck,  13  N.  H.  360,  40  A.  D.  156; 
Mitchell  v.  Walker,  2  Aikens  (Vt.)  266,  16  A.  D.  710.  And  see  Lon- 
don &  N.  W.  R.  Co.  v.  Commissioners,  75  L.  T.  R.  629.  And  a  grant 
subject  to  a  reservation  may  also  be  presumed.  Bolivar  Mfg.  Co.  v. 
Neponset  Mfg.  Co..  16  Pick.  (Mass.)  241. 

The  presumption  of  lost  grant  may  arise,  even  though  the  con- 
veyance is  such  that  it  should  have  been  recorded,  and  no  record  of  it 
can  be  found.  Valentine  v.  Piper,  22  Pick.  (Mass.)  85,  33  A.  D.  715; 
Brattle  Square  Church  v.  Bullard,  2  Mete.  (Mass.)  363. 

The  presumption  has  been  held  to  apply  to  personal  property.  Mc- 
Arthur  v.  Carrie's  Adm'r,  32  Ala.  75,  70  A.  D.  529. 

The  rules  regarding  the  establishment  of  a  custom  by  immemorial 
usage  are  analogous  to  those  under  consideration.  Bryant  v.  Foot, 
L.  R.  3  Q.  B.  497,  affirming  L.  R.  2  Q.  B.  161,  Thayer,  Cas.  Ev.  46; 
Mills  v.  Colchester,  L.  R.  2  C.  P.  476;  London  &  N.  W.  R.  Co.  v.  Com- 
missioners, 75  L.  T.  R.  629;  Stamford  v.  Dunbar,  13  Mees.  &  W.  822. 

"A  right  to  use  land  for  highway  purposes  may  usually  be  acquired 
by  the  public  by  its  use  for  such  purposes  under  a  claim  of  right  for 
the  statutory  period  of  limitation  as  to  land.  Such  mode  of  acquisi- 
tion of  highway  rights  is  ordinarily  referred  to  as  'prescription,'  and 
is  generally  based  on  the  theory  that  such  user  of  the  land  raises  the 
presumption  of  a  dedication,  or  of  an  appropriation  of  the  land  by  a 
statutory  proceeding."  Tiffany,  Real  Prop.  §  452,  citing  cases.  And 
see  note  to  Whitesides  v.  Green,  13  Utah,  341,  57  A.  S.  R.  740. 

sisBunce  v.  Wolcott,  2  Conn.  28,  31;  Wadsworthville  Poor  School  v. 
Jennings,  40  S.  C.  168,  42  A.  S.  R.  854;  Knight  v.  Heaton,  22  Vt.  480. 
See  Doe  d.  Wallace  v.  Maxwell,  32  N.  C.  (10  Ired.  Law)  110,  51  A. 
D.  380. 

The  statutes  of  limitation  have  not  superseded  the  presumption  of 
lost  grant  arising  from  immemorial  user.  Stamford  v.  Dunbar,  13 
Mees.  &  W.  822  (semble).  See  page  349,  supra. 


356  LAW    OF   EVIDENCE.  §   91c 

of  a  lost  grant  from  the  state  as  well  as  from  an  individual  ;814 
and  it  may  operate  against  a  corporation  as  well  as  against 
an  individual  owner.815 

(c)  Nature  of  presumption.  In  some  cases  this  presumption 
has  been  deemed  one  of  fact  which  the  jury  may  or  may  not 
indulge,  according  to  whether  the  probability  of  a  grant  in  fact 
is  established  by  the  evidence.816  By  the  great  weight  of  au- 

si*  Attorney-General  v.  Revere  Copper  Co.,  152  Mass.  444,  9  L.  R. 
A.  510  (statute);  Nichols  v.  Boston,  98  Mass.  39,  93  A.  D.  132  (statute); 
Knight  v.  Heaton,  22  Vt.  480. 

The  exclusive  right  to  navigate  a  public  river  cannot  be  acquired 
by  prescription.  Bird  v.  Smith,  8  Watts  (Pa.)  434,  34  A.  D.  483 
(semble).  Neither  can  the  right  to  obstruct  a  street.  Kelly  v.  Pitts- 
burgh, C.,  C.  &  St.  L.  R.  Co.,  28  Ind.  App.  457,  91  A.  S.  R.  134;  Com. 
v.  Moorehead,  118  Pa.  344,  4  A.  S.  R.  599.  Nor  the  exclusive  right 
to  operate  a  stage  line  over  a  highway.  Eastman  v.  Curtis,  1  Conn. 
323. 

"While  it  is  well  recognized  that  no  rights  can  be  acquired  by 
prescription  to  maintain  a  public  nuisance,  the  cases  are  not  in  ac- 
cord on  the  question  whether  one's  right  to  set  up  a  prescriptive  right 
of  user,  as  against  the  private  owner  of  land,  is  defeated  by  the  fact 
that  such  user  constitutes,  in  itself,  a  public  nuisance."  Tiffany,  Real 
Prop.  §  445,  citing  cases. 

sis  Northern  Pac.  R.  Co.  v.  Townsend,  84  Minn.  152,  87  A.  S.  R. 
342;  Wadsworthville  Poor  School  v.  Jennings,  40  S.  C.  168,  42  A.  S.  R. 
854,  869. 

In  North  Carolina,  however,  lands  or  easements  acquired  by  a  rail- 
road, plank  road,  turnpike, -or  canal  company  by  condemnation  cannot 
be  lost  by  prescription.  Bass  v.  Roanoke  N.  &  W.  P.  Co.,  Ill  N.  C.  439, 
19  L.  R.  A.  247. 

sieLivett  v.  Wilson,  3  Bing.  115,  118  (semble);  Trotter  v.  Harris,  2 
Younge  &  J.  285  (semble);  Little  v.  Wingfield,  11  Ir.  C.  L.  63;  Mitchell 
v.  Walker,  2  Ark.  (Vt.)  266,  16  A.  D.  710  (semble).  Contra,  McArthur 
v.  Carrie's  Adm'r,  32  Ala.  75,  70  A.  D.  529. 

In  Parker  v.  Foote,  19  Wend.  (N.  Y.)  309,  the  court  says,  first 
(page  314),  that  the  presumption  arising  from  twenty  years'  ad- 
verse possession  is  not  a  presumption  of  fact,  but  "a  presumption  of 
mere  law."  Yet  the  court  says  (page  316)  that,  even  in  the  absence 
of  evidence  in  rebuttal,  the  question  is  one  for  the  jury,  thus  deny- 
ing the  presumption  the  effect  due  to  a  presumption  of  law,  and  giving 


§  91 C  USE  AND  POSSESSION.  357 

thority,  however,  it  is  a  presumption  of  law, — a  conclusive 
presumption,  so  called.  It  is  sometimes  said  that  the  presump- 
tion is  not  conclusive,  but  rebuttable.817  Most  of  the  cases  in 
which  this  proposition  is  advanced  will  be  found  to  be  those 
in  which  the  rebutting  evidence,  so  called,  tends  to  disprove 
facts  on  which  the  presumption  is  based,  and  necessarily  as- 
sumed by  the  presumption  to  exist, — such  as  the  continuity 
of  the  possession,  its  hostility,  its  notoriety,  etc.818  Evidence  to 
disprove  the  foundation  of  the  presumption  is  unquestionably 
admissible,  but  it  does  not  follow  that  the  presumption  itself 
is  rebuttable.818*  Properly  speaking,  the  presumption  does 
not  arise  until  the  facts  on  which  it  is  founded  are  established 
by  evidence.  When  these  facts  have  been  proved,  and  not 
until  then,  the  presumption  comes  into  existence.  And  when 
it  has  thus  been  created,  evidence  is  not  admissible  to  show 
that  in  fact  a  grant  was  never  made,  since  the  presumption, 
like  the  statutes  of  limitation,  is  based  on  a  principle  of  public 
policy  having  for  its  object  the  quieting  of  titles.  The  pre- 
sumption is  therefore  conclusive,  or,  to  speak  properly,  it  is  a 
rule  of  substantive  law  that  the  adverse  user  of  a  proprietary 
right  for  the  prescribed  period  divests  the  true  owner's  title, 
and  vests  it  absolutely  in  the  adverse  claimant.819 

it  the  force  of  a  presumption  of  fact  only.  Again  the  court  says  (page 
315)  that  the  presumption  is  rebuttable.  Yet  it  is  questioned  (page 
319)  whether  proof  that  no  grant  was  in  fact  made  would  overcome 
the  presumption,  thus  implying  (without  deciding,  however)  that  the 
presumption  is  a  so-called  conclusive  presumption.  This  case  affords 
a  fair  specimen  of  the  difficulties  met  with  in  the  law  of  presump- 
tions. 

siTLanier  v.  Booth,  50  Miss.  410;  Parker  v.  Foote,  19  Wend.  (N.  Y.) 
309. 

sis  McArthur  v.  Carrie's  Adm'r,  32  Ala.  75,  70  A.  D.  529;  Nieto's  Heirs 
v.  Carpenter,  21  Cal.  455,  489;  Wadsworthville  Poor  School  v.  Jennings, 
40  S.  C.  168,  42  A.  S.  R.  854,  866,  867;  Field  v.  Brown,  24  Grat.  (Va.N 
74.  And  see  English  v.  Register,  7  Ga.  387. 

8isa  See  page  52,  supra. 

si»  Tiffany,  Real  Prop.  §  445;  Wright  v.  Howard,  1  Sim.  &  S.  190,  20J, 


358  LAW    OF   EVIDENCE. 

(d)  Sufficiency  of  user  or  possession.  Since  the  presumption 
of  lost  grant  is  founded  by  analogy  upon  the  statutes  of  lim- 
itation, it  is  generally  held  that  the  user  or  possession  which 
will  give  rise  to  the  presumption  must,  so  far  as  the  nature 
of  the  property  permits,  satisfy  the  conditions  of  adverse  pos- 
session as  it  is  defined  under  those  statutes.820  The  burden  of 
proving  all  the  essential  elements  of  adverse  user  or  posses- 
sion rests  on  the  adverse  claimant,821  and  it  must  be  proved 
by  clear  and  strong  evidence.822 

In  the  absence  of  statute,  the  full  period  of  twenty  years 
must  have  elapsed,  else  a  grant  will  not  be  presumed  from  ad- 
verse user  of  the  right  in  question.823  It  is  to  be  remembered, 

Tyler  v.  Wilkinson,  4  Mason,  397,  Fed.  Gas.  No.  14,312;  Casey's  Lessee 
v.  Inloes,  1  Gill  (Md.)  430,  39  A.  D.  658;  Coolidge  v.  Learned,  8  Pick. 
(Mass.)  504,  508;  Wallace  v.  Fletcher,  30  N.  H.  434,  447;  Lehigh  Val- 
ley R.  Co.  v.  McFarlan,  43  N.  J.  Law,  605;  Ward  v.  Warren,  82  N.  Y. 
265;  Okeson  v.  Patterson,  29  Pa.  22;  Lamb  v.  Crosland,  4  Rich.  Law 
(S.  C.)  536;  Wadsworthville  Poor  School  v.  Jennings,  40  S.  C.  168,  42 
A.  S.  R.  854,  865,  866  (semble) ;  University  of  Vt.  v.  Reynold's  Ex'r, 
3  Vt.  542,  23  A.  D.  234,  242  (semble) ;  Tracy  v.  Atherton,  36  Vt.  503. 

820  pitzman  v.  Boyce,  111  Mo.  387,  33  A.  S.  R.  536,  538;  Mission  v. 
Cronin,  143  N.  Y.  524;  Or.  Const.  Co.  v.  Allen  Ditch  Co.,  41  Or.  209,  93 
A.  S.  R.  701;  North  Point  Consol.  Irr.  Co.  v.  Utah  &  S.  L.  Canal  Co., 
16  Utah,  246,  67  A.  S.  R.  607.  These  conditions  are  well  put  in  short 
form  in  Tiffany,  Real.  Prop.  §§  436-444. 

*2i  Carlisle  v.  Cooper,  19  N.  J.  Eq.  256.  And  see  De  Frieze  v.  Quint, 
94  Cal.  653,  28  A.  S.  R.  151;  Rowland  v.  Updike,  28  N.  J.  Law,  101; 
Lecomte  v.  Toudouze,  82  Tex.  208,  27  A.  S.  R.  870;  Fuller  v.  Worth, 
91  Wis.  406. 

822Budd  v.  Brooke,  3  Gill  (Md.)  198,  43  A.  D.  321;  Casey's  Lessee 
v.  Inloes,  1  Gill  (Md.)  430,  39  A.  D.  658.  And  see  Rowland  v.  Up- 
dike, 28  N.  J.  Law,  101. 

A  prescriptive  right  to  render  water  unfit  for  domestic  purposes 
requires  the  strictest  proof.  McCallum  v.  Germantown  Water  Co., 
54  Pa.  40,  93  A.  D.  656. 

823  Johnson  v.  Jordan,  2  Mete.  (Mass.)  234,  37  A.  D.  85;  Campbell 
v.  Smith,  8  N.  J.  Law,  140,  14  A.  D.  400. 

Successive  adverse  user,  for  more  than  twenty  years,  of  two  ease- 


§  91d  USE  AND  POSSESSION.  359 

however,  that  the  time  is  usually  fixed  by  analogy  with  refer- 
ence to  the  time  allowed  by  statute  within  which  an  action 
may  be  brought  to  recover  possession  of  land.824  Consequent- 
ly, if  the  statutory  time  is  either  more  or  less  than  twenty 
years,  the  prescriptive  period  varies  accordingly.825  For  the 
purpose  of  making  up  the  twenty  years'  period  necessary  to 
found  the  presumption  of  a  lost  grant,  successive  adverse  users 
may  be  tacked  together,826  if  the  several  possessors  stand  in 

ments  of  like  character  and  in  same  locality,  does  not  found  a  pre- 
sumption of  grant  if  neither  was  enjoyed  for  a  period  of  twenty 
years.  Totel  v.  Bonnefoy,  123  111.  653,  5  A.  S.  R.  570. 

The  prescriptive  period  commences  to  run,  not  necessarily  when  the 
user  first  commences,  but  when  the  injury  resulting  from  that  user 
commences.  Eells  v.  Chesapeake  &  O.  R.  Co.,  49  W.  Va.  65,  87  A.  S. 
R.  787. 

824  Jesse  French  P.  &  O.  Co.  v.  Forbes,  129  Ala.  471,  87  A.  S.  R.  71; 
Bunce  v.  Wolcott,  2  Conn.  27,  31;  Coolidge  v.  Learned,  8  Pick.  (Mass.) 
504,  508;  Nichols  v.  Boston,  98  Mass.  39,  93  A.  D.  132;  Edson  v.  Mun- 
sell,  10  Allen  (Mass.)  557,  566;  Mueller  v.  Fruen,  36  Minn.  273;  Lanier 
v.  Booth,  50  Miss.  410;  Pitzman  v.  Boyce,  111  Mo.  387,  33  A.  S.  R.  536; 
Wallace  v.  Fletcher,  30  N.  H.  434,  447;  Carlisle  v.  Cooper,  19  N.  J.  Eq. 
256;  Cobb  v.  Davenport,  32  N.  J.  Law,  369;  Corning  v.  Gould,  16  Wend. 
(N.  Y.)  531;  Parker  v.  Foote,  19  Wend.  (N.  Y.)  309;  Or.  Const.  Co.  v. 
Allen  Ditch  Co.,  41  Or.  209,  216,  93  A.  S.  R.  701,  707;  Worrall  v.  Rhoads, 
2  Whart.   (Pa.)  427,  30  A.  D.  274;  McGeorge  v.  Hoffman,  133  Pa.  381; 
Rooker  v.   Perkins,  14  Wis.   79.     See,   however,  Wadsworthville   Poor 
School  v.  Jennings,  40  S.  C.  168,  42  A.  S.  R.  854,  867. 

The  time  is  prescribed  by  statute  expressly  in  some  states.  Con- 
ner v.  Woodflll,  12&  Ind.  85,  22  A.  S.  R.  568;  Delahoussaye  v.  Judice, 
13  La.  Ann.  587,  71  A.  D.  521. 

825  Wright  v.  Moore,  38  Ala.  593,  82  A.  D.  731;  Shahan  v.  Ala.  G.  S.  R. 
Co.,  115  Ala.  181,  67  A.  S.  R.  20;  Legg  v.  Horn,  45  Conn.  409;  Ingraham 
y.  Hutchinson,  2  Conn.  584;   Melvin  v.  Whiting,  10  Pick.   (Mass.)   295, 
20  A.  D.  524;  Hoag  v.  Place,  93  Mich.  450;  Alcorn  v.  Sadler,  71  Miss.  634, 
42  A.  S.  R.  484;  Chollar-Potosi  Min.  Co.  v.  Kennedy,  3  Nev.  361,  93  A. 
D.  409;   Reimer  v.  Stuber,  20  Pa.  458,  59  A.  D.  744;   Krier's  Private 
Road,  73  Pa.  109;   Mitchell  v.  Walker,  2  Aik.   (Vt.)   266,  16  A.  D.  710. 
See  Wallace  v.  Maxwell,  32  N.  C.  (10  Ired.)  110,  51  A.  D.  380. 

82«  Tiffany,  Real  Prop.  §  446;  Bradley's  Fish  Co.  v.  Dudley,  37  Conn. 
136;  Ross  v.  Thompson,  78  Ind.  90;  Leonard  v.  Leonard,  7  Allen 


360  LAW   OF  EVIDENCE. 

privity827  and  their  possession  is  continuous.828  The  various 
statutes  of  limitation  adopted  throughout  the  United  States 
generally  extend  the  time  for  bringing  an  action  to  recover 
land  if  the  plaintiff  was  under  disability  on  account  of  infancy, 
insanity,  coverture,  or  otherwise  unable  to  sue  when  the  right 
of  action  accrued ;  and  these  exceptions  are  applied  by  analogy, 
in  cases  of  prescription,  where  a  lost  grant  would  otherwise  be 
presumed.829 

(Mass.)  277;  Dodge  v.  Stacy,  39  Vt.  558.  However,  the  time  of  the 
use  of  a  drainage  ditch  cannot  be  tacked  to  the  time  of  the  use  of 
an  older  ditch  employed  in  the  same  locality  for  the  same  purpose. 
Totel  v.  Bonnefoy,  123  111.  653,  5  A.  S.  R.  570. 

827  Tiffany,  Real  Prop.  §  446;  Holland  v.  Long,  7  Gray  (Mass.)  486; 
McCullough  v.  Wall,  4  Rich.  Law    (S.  C.)  68,  53  A.  D.  715. 

828  Casey's  Lessee  v.  Inloes,  1  Gill   (Md.)   430,  39  A.  D.  658.     Neces- 
sity of  continuity  of  possession,  see  page  361,  infra. 

822  Tiffany,  Real  Prop.  §§  439,  447;  Melvin  v.  Whiting,  13  Pick. 
(Mass.)  185,  188  (semble) ;  Edson  v.  Munsell,  10  Allen  (Mass.)  557; 
Reimer  v.  Stuber,  20  Pa.  458,  59  A.  D.  744. 

The  presumption  may  arise  against  remaindermen  and  reversioners 
during  the  continuance  of  the  particular  estate  if  they  might  have 
brought  suit  against  the  adverse  claimant  at  any  time  within  the 
prescriptive  period.  Tiffany,  Real  Prop.  §  450;  Cross  v.  Lewis,  2 
Barn.  &  C.  686;  Ward  v.  Warren,  82  N.  Y.  265;  Reimer  v.  Stuber,  20 
Pa.  458,  59  A.  D.  744.  But  the  rule  is  otherwise  if  they  were  not  in  a 
position  to  sue.  Pierre  v.  Fernald,  26  Me.  436,  46  A.  D.  573;  McCorry 
v.  King's  Heirs,  3  Humph.  (Tenn.)  267,  39  Am.  Dec.  165;  Pentland  v. 
Keep,  41  Wis.  490.  See  Bright  v.  Walker,  1  Cr.,  M.  &  R.  211,  4  Tyrwh. 
502;  Albert  Lea  v.  Nielsen,  83  Minn.  101,  81  A.  S.  R.  242. 

The  disability  must  have  existed  at  the  time  the  cause  of  action 
arose.  Subsequent  incapacity  to  sue  does  not  stop  the  running  of  time. 
Ballard  v.  Demmon,  156  Mass.  449;  Mebane  v.  Patrick,  46  N.  C.  (1 
Jones,  Law)  23,  26;  Tracy  v.  Atherton,  36  Vt.  503.  Contra,  Lamb  v. 
Crosland,  4  Rich.  Law  (S.  C.)  536.  In  New  Hampshire,  it  seems, 
the  presumption  does  not  arise  if  the  disability  existed  at  the  close  of 
the  period  of  prescription,  even  though  it  did  not  exist  at  the  com- 
mencement of  that  period.  Watkins  v.  Peck,  13  N.  H.  360,  40  A.  D. 
156.  But  a  disability  which  did  not  exist  either  at  the  beginning 
or  at  the  close  of  the  prescriptive  period  does  not  defeat  the  pre- 
sumption. Wallace  v.  Fletcher,  30  N.  H.  434. 


§  91d  USE  AND  POSSESSION.  361 

A  lost  grant  is  not  presumed  unless  the  adverse  user  has  been 
continuous  throughout  the  statutory  period.830  If,  therefore, 
the  owner  of  the  land  successfully  interrupts,  for  an  apprecia- 
ble time,  the  exercise  of  the  user,  the  time  which  has  there- 
tofore run  in  favor  of  the  possessor  is  lost,  and  a  prescriptive 
right  does  not  come  into  being  until  the  expiration  of  the 
statutory  period  from  the  time  when  the  interruption  ceased.831 
The  requirement  of  continuity  does  not  demand  a  constant  ex- 
One  disability  cannot  be  tacked  to  another,  so  as  to  extend  the  day 
when  the  time  shall  commence  to  run.  Reimer  v.  Stuber,  20  Pa.  458, 
59  A.  D.  744. 

sso  Tiffany,  Real  Prop.  §  448;  Jesse  French  P.  &  O.  Co.  v.  Forbes, 
129  Ala.  471,  87  A.  S.  R.  71;  Peters  v.  Little,  95  Ga.  151;  Cleveland, 
C.,  C.  &  St.  L.  R.  Co.  v.  Huddleston,  21  Ind.  App.  621,  69  A.  S.  R.  385; 
Casey's  Lessee  v.  Inloes,  1  Gill  (Md.)  430,  39  A.  D.  658;  Armstrong 
v.  Risteau,  5  Md.  256,  59  A.  D.  115;  Bodfish  v.  Bodflsh,  105  Mass. 
317;  Chapel  v.  Smith,  80  Mich.  100;  Lanier  v.  Booth,  50  Miss.  410; 
Carlisle  v.  Cooper,  19  N.  J.  Eq.  256;  Nicholls  v.  Wentworth,  100  N. 
Y.  455;  Watt  v.  Trapp,  2  Rich.  Law  (S.  C.)  136;  Wadsworthville  Poor 
School  v.  Jennings,  40  S.  C.  168,  42  A.  S.  R.  854. 

Slight  or  occasional  variations  in  the  exercise  of  the  right  do  not 
defeat  the  continuity  of  the  possession,  however.  Fletcher  v.  Fuller, 
120  U.  S.  534,  552  (semble) ;  Wright  v.  Moore,  38  Ala.  593,  82  A.  D.  731, 
734. 

83i  Sears  v.  Hayt,  37  Conn.  406;  Delahoussaye  v.  Judice,  13  La.  Ann. 
587,  71  A.  D.  521;  Barker  v.  Clark,  4  N.  H.  380,  17  A.  D.  428;  Plimpton 
v.  Converse,  42  Vt.  712. 

The  interruption,  to  defeat  the  continuity,  must  be  complete  for 
the  time  being.  Connor  v.  Sullivan,  40  Conn.  26;  McKenzie  v.  Elliott, 
134  111.  156;  Webster  v.  Lowell,  142  Mass.  324. 

"The  fact  that  the  owner  of  the  land,  during  the  statutory  period, 
protests  or  remonstrates  against  the  exercise  of  the  asserted  right, 
without  taking  any  positive  action  to  prevent  its  exercise  which  might 
be  made  the  ground  of  a  legal  action  by  a  person  entitled  to  the  right, 
does  not,  by  the  weight  of  authority,  as  well  as  of  reason,  prevent  the 
acquisition  of  the  right."  Tiffany,  Real  Prop.  §  448,  citing  cases. 

To  defeat  the  presumption  of  grant,  the  interruption  by  the  legal 
owner  must  have  occurred  before  the  expiration  of  the  twenty  years' 
period.  Carlisle  v.  Cooper,  19  N.  J.  Eq.  256.  And  see  Welcome  v. 
Upton,  6  Mees.  &  W.  536. 


362  LAW   OF  EVIDENCE.  §  91d 

ercise  of  the  right,  however,  where  the  nature  of  the  right  is 
not  such  that  it  cannot  be  enjoyed  without  a  constant  user.882 
If,  before  the  statutory  period  is  completed,  a  period  inter- 
venes during  which  the  dominant  and  the  servient  estates  are 
owned  by  the  same  person,  howsoever  short  the  duration  of 
such  ownership,  the  continuity  of  the  adverse  user  is  broken, 
and  the  time  which  has  theretofore  run  is  not  available  to 
found  the  presumption  of  lost  grant.833 

Generally  speaking,  the  exercise  of  the  right  must  be  ex- 
clusive.834 If,  however,  a  right  is  by  nature  susceptible  of 
enjoyment  by  more  than  one  person  during  the  same  period 
of  time, — such,  for  instance,  as  a  right  of  way, — it  is  not  nec- 
essary, in  order  to  found  a  presumption  of  lost  grant,  that  the 
right  should  be  exercised  or  claimed  by  one  person  exclusive- 
ly. The  fact  that  others  also  assert  and  exercise  a  like 
right  with  reference  to  the  same  land  does  not  affect  the 
claimant  in  question,  if  he  asserts  a  private  right  in  himself 
and  exercises  it  without  interruption.835  But  if  the  particular 

832  Tiffany,  Real  Prop.  §  448;  Hesperia  L.  &  W.  Co.  v.  Rogers,  83  Cal. 
10,  17  A.  S.  R.  209;  Cox  v.  Forrest,  60  Md.  74;  Bodfish  v.  Bodfish,  105 
Mass.  317;  Cornwell  Mfg.  Co.  v.  Swift,  89  Mich.  503;  Swan  v.  Munch, 
65  Minn.  500,  60  A.  S.  R.  491;  Alcorn  v.  Sadler,  71  Miss.  634,  42  A. 
S.  R.  484;  Carlisle  v.  Cooper,  19  N.  J.  Eq.  256;  Winnipiseogee  Lake  Co. 
v.  Young,  40  N.  H.  420;  Gerenger  v.  Summers,  24  N.  C.  (2  Ired.)  229; 
Messinger's  Appeal,  109  Pa.  290;  Bird  v.  Smith,  8  Watts  (Pa.)  434,  341 
A.  D.  483. 

ass  Tiffany,  Real  Prop.  §  448;  Pierre  v.  Fernald,  26  Me.  436,  46  A.  D. 
573;  White  v.  Chapin,  12  Allen  (Mass.)  516,  518;  Vossen  v.  Dautel, 
116  Mo.  379;  Stuyvesant  v.  Woodruff,  21  N.  J.  Law,  133,  47  A.  D.  156. 

ssi  Jesse  French  P.  &  O.  Co.  v.  Forbes,  129  Ala.  471,  87  A.  S.  R. 
71.  And  see  Hunt  v.  Hunt,  3  Mete.  (Mass.)  175,  37  A.  D.  130,  133; 
Armstrong  v.  Risteau's  Lessee,  5  Md.  256,  59  A.  D.  115. 

sss  Tiffany,  Real  Prop.  §  449;  McKenzie  v.  Elliott,  134  111.  156;  Cox 
v.  Forrest,  60  Md.  74;  Kilburn  v.  Adams,  7  Mete.  (Mass.)  33,  39  A.  D. 
754;  Webster  v.  Lowell,  142  Mass.  324;  Ballard  v.  Demmon,  156  Mass. 
449;  Oregon  Const.  Co.  v.  Allen  Ditch  Co.,  41  Or.  209,  93  A.  S.  R.  701; 
Wanger  v.  Hippie  (Pa.)  13  Atl.  81. 


§  91d  USE  AND  POSSESSION.  363 

claimant  exercises  the  right  in  common  with  the  public  at  large, 
and  asserts  no  private  right  to  do  so,  his  user  cannot  ripen  into 
a  private  easement.838 

The  extent  of  the  easement  acquired  by  prescription  is  re- 
stricted to  the  extent  of  the  adverse  user.887 

To  create  a  presumption  of  lost  grant,  the  exercise  of  the 
right  must  be  hostile  or  adverse  to  the  owner  of  the  land.  If 
the  right  is  exercised  pursuant  to  his  permission,  express  or 
implied,  it  cannot  ripen  into  an  easement;838  and  the  user,  to 

sse  Tiffany,  Real  Prop.  §  449;  Kilburn  v.  Adams,  7  Mete.  33,  39  Am. 
Dec.  754;  Burnham  v.  McQuesten,  48  N.  H.  446;  Cobb  v.  Davenport, 
32  N.  J.  Law,  369;  Prince  v.  Wilbourn,  1  Rich.  Law  (S.  C.)  58;  Plimp- 
ton v.  Converse,  44  Vt.  158. 

SB?  Wright  v.  Moore,  38  Ala.  593,  82  A.  D.  731;  Carlisle  v.  Cooper, 
19  N.  J.  Eq.  256;  Hall  v.  Augsbury,  46  N.  Y.  622;  Darlington  v.  Painter, 
7  Pa.  473;  McGeorge  v.  Hoffman,  133  Pa.  381.  However,  if  a  man  claims, 
for  the  prescriptive  period,  the  right  to  cut  ice  from  any  part  of  a  pond, 
and  accordingly  cuts  it  from  various  parts,  though  not  from  tl^e 
entire  pond,  his  prescriptive  right  is  not  limited  to  the  parts  from 
which  he  has  cut  ice.  Hoag  v.  Place,  93  Mich.  450. 

sas  ALABAMA:  Jesse  French  P.  &  O.  Co.  v.  Forbes,  129  Ala.  471,  87 
A.  S.  R.  71. 

CALIFORNIA:  Nieto's  Heirs  v.  Carpenter,  21  Cal.  455;  Thomas  v. 
England,  71  Cal.  456. 

ILLINOIS:     Dexter  v.  Tree,  117  111.  532. 

INDIANA:  Cleveland,  C.,  C.  &  St.  L.  R.  Co.  v.  Huddleston,  21  Ind. 
App.  621,  69  A.  S.  R.  385;  Conner  v.  Woodfill,  126  Ind.  85,  22  A.  S.  R. 
568. 

KENTUCKY:  Conyers  v.  Scott,  94  Ky.  123;  Hall  v.  McLeod,  2  Mete. 
98,  74  A.  D.  400. 

MAINE:  Bethum  v.  Turner,  1  Greenl.  Ill,  10  A.  D.  36;  Morse  v. 
Williams,  62  Me.  445. 

MARYLAND:     Armstrong  v.  Risteau,  5  Md.  256,  59  A.  D.  115. 

MASSACHUSETTS:  Arnold  v.  Stevens,  24  Pick.  106,  35  A.  D.  305;  Kil- 
burn v.  Adams,  7  Mete.  33,  39  A.  D.  754. 

MISSISSIPPI:     Lanier  v.  Booth,  50  Miss.  410. 

MISSOURI:     Pitzman  v.  Boyce,  111  Mo.  387,  33  A.  S.  R.  536. 

NEW  HAMPSHIRE:     Swett  v.  Cutts,  50  N.  H.  439,  9  A.  R.  276. 

NEW  JERSEY:     Cobb  v.  Davenport,  32  N.  J.  Law,  369. 


364  LAW   OF  EVIDENCE.  91  d 

be  hostile,  must  be  such  as  to  infringe  the  landowner's  right 
of  property,  so  as  to  give  him  a  right  of  action  against  the 
claimant.839  It  is  for  this  reason,  doubtless,  that  certain  ease- 

NEW  YORK:  Wiseman  v.  Lucksinger,  84  N.  Y.  31,  38  A.  R.  479;  Park- 
er v.  Foote,  19  Wend.  309. 

NORTH  CAROLINA:     Mebane  v.  Patrick,  46  N.  C.   (1  Jones,  Law)   23. 

PENNSYLVANIA:  Bennett  v.  Biddle,  140  Pa.  396;  Susquehanna  County 
v.  Deans,  33  Pa.  131;  Demuth  v.  Amweg,  90  Pa.  181. 

SOUTH  CAROLINA:  Trustees  of  Wadsworthville  Poor  School  v.  Jen- 
nings, 40  S.  C.  168,  42  A.  S.  R.  854;  McCullough  v.  Wall,  4  Rich.  Law, 
68,  53  A.  D.  715. 

VERMONT:  Weed  v.  Keenan,  60  Vt.  74,  6  A.  S.  R.  93;  Mitchell  v. 
Walker,  2  Aikens,  266,  16  A.  D.  710. 

VIRGINIA:     Field  v.  Brown,  24  Grat.  74. 

WISCONSIN:  Whaley  v.  Jarrett,  69  Wis.  613,  2  A.  S.  R.  764;  Pentland 
v.  Keep,  41  Wis.  490. 

User  of  a  right  of  way  is  prima  facie  adverse  where  it  was  exercised 
openly,  notoriously,  and  continuously,  without  the  owner's  consent 
being  asked,  and  without  any  manifestation  that  it  was  exercised  by 
his  permission.  Chollar-Potosi  Min.  Co.  v.  Kennedy,  3  Nev.  361,  93  A. 
D.  409.  And  it  has  been  held  that  any  unexplained  user  or  possession 
is  prima  facie  adverse.  Swan  v.  Munch,  65  Minn.  500,  60  A.  S.  R.  491, 
494;  Doe  d.  Jackson  v.  Hillsborough  Com'rs,  18  N.  C.  (1  Dev.  &  B.) 
177. 

The  presumption  may  arise,  even  though  the  owner  acquiesced  in  the 
adverse  possession  because  of  a  prevalent  opinion,  known  to  and 
adopted  by  him,  that  the  title  rested  in  the  state.  Casey's  Lessee  v. 
Inloes,  1  Gill  (Md.)  430,  39  A.  D.  658. 

If  a  right  is  once  acquired  by  prescription,  it  is  not  lost  by  a  sub- 
sequent acknowledgment  of  the  titular  owner's  title.  Weed  v.  Keenan, 
60  Vt.  74,  6  A.  S.  R.  93. 

839  Tiffany,  Real  Prop.  §  450. 

ENGLAND:     Rowbotham  v.  Wilson,  6  El.  &  Bl.  593. 

ALABAMA:  Wright  v.  Moore,  38  Ala.  593,  82  A.  D.  731,  733;  Round- 
tree  v.  Brantley,  34  Ala.  544,  73  A.  D.  470. 

CALIFORNIA:     Richard  v.  Hupp,  37  Pac.  920. 

CONNECTICUT:     Whiting  v.  Gaylord,  66  Conn.  337,  50  A.  S.  R.  87. 

GEORGIA:     Mitchell  v.  Rome,  49  Ga.  19. 

MAINE:  Seidensparger  v.  Spear,  17  Me.  123,  35  A.  D.  234;  Tinkham 
v.  Arnold,  3  Me.  120. 

MARYLAND:     Casey's  Lessee  v.  Inloes,  1  Gill,  430,  39  A.  D.  658. 


§  91d  USE  AND  POSSESSION.  365 

merits  cannot  be  acquired  by  prescription.  Their  nature  is  such 
that  the  owner  of  the  land  cannot  prevent  the  exercise  of  the 
right,  or  sue  on  account  of  it,  and  his  failure  to  attempt  to 
do  so  is  therefore  no  evidence  of  acquiescence  on  his  part.840 
A  user  commencing  by  license  of  the  landowner  may  afterwards 
become  hostile,  with  or  without  a  revocation  of  the  license,  by 
a  subsequent  repudiation  of  the  owner's  rights  by  the  li- 
censee;841 and  rights  asserted  pursuant  to  a  defective  grant 
from  the  owner  of  the  land  are  deemed  hostile  to  him.842 

MASSACHUSETTS:  Pratt  v.  Lamson,  2  Allen,  275;  Gilmore  v.  Driscoll, 
122  Mass.  199,  207. 

MICHIGAN:     Turner  v.  Hart,  71  Mich.  128,  15  A.  S.  R.  243. 

NEW  HAMPSHIRE:     Burnham  v.  Kempton,  44  N.  H.  78. 

NEW  JERSEY:     Carlisle  v.  Cooper,  19  N.  J.  Eq.  256. 

NORTH  CAROLINA:  Emery  v.  Raleigh  &  G.  R.  Co.,  102  N.  C.  210,  11 
A.  S.  R.  727. 

OREGON:    Wimer  v.  Simmons,  27  Or.  1,  50  A.  S.  R.  685. 

TEXAS:     Klein  v.  Gehrung,  25  Tex.  Supp.  232. 

It  has  been  held  otherwise  as  to  the  right  to  use  the  waters  of  a 
running  stream.  Ingraham  v.  Hutchinson,  2  Conn.  584.  Contra,  Parker 
v.  Hotchkiss,  25  Conn.  321. 

If  the  owner's  right  of  property  is  infringed,  the  user  may  be  hostile, 
even  though  no  actual  damage  is  done  to  the  land.  Tiffany,  Real 
Prop.  §  450,  citing  cases. 

840  Tiffany,  Real  Prop.  §  451;  Broadbent  v.  Ramsbotham,  11  Exch. 
602;  White  v.  Chapin,  12  Allen  (Mass.)  516,  518. 

Light  and  air.  Jesse  French  P.  &  O.  Co.  v.  Forbes,  129  Ala.  471,  87 
A.  S.  R.  71;  Western  Granite  &  M.  Co.  v.  Knickerbocker,  103  Cal.  Ill; 
Turner  v.  Thompson,  58  Ga.  268,  24  A.  R.  497;  Guest  v.  Reynolds,  68 
111.  478,  18  A.  R.  570;  Stein  v.  Hauck,  56  Ind.  65,  26  A.  R.  10;  Pierre  v. 
Fernald,  26  Me.  436,  46  A.  D.  573;  Cherry  v.  Stein,  11  Md.  1;  Keats  v. 
Hugo,  115  Mass.  204,  15  A.  R.  80;  Parker  v.  Foote,  19  Wend.  (N.  Y.) 
309;  Napier  v.  Bulwinkle,  5  Rich.  Law  (S.  C.)  311. 

Percolation  of  waters.  Chasemore  v.  Richards,  7  H.  L.  Cas.  349; 
Frazier  v.  Brown,  12  Ohio  St.  294;  Wheatley  v.  Baugh,  25  Pa.  528,  64 
A.  D.  721.  And  see  Roath  v.  Driscoll,  20  Conn.  533,  52  A.  D.  352. 
Contra.  Balston  v.  Bensted,  1  Camp.  463. 

8*1  Tiffany,  Real  Prop.  §  450;  Pitzman  v.  Boyce,  111  Mo.  387;  Ecker- 
son  v.  Crippen,  110  N.  Y.  585;  Huston  v.  Bybee,  17  Or.  140;  Thoemke 
v.  Fiedler,  91  Wis.  386. 


366  LAW   OF  EVIDENCE.  §  92a 

The  possession  or  user  must  be  open  and  notorious,843 — either 
this  or  known  by  the  owner  to  be  adverse  to  his  rights.844  It 
is  often  said  without  qualification  that  the  hostile  user  of  the 
land  must  be  known  to  the  owner  ;845  but  if  the  user  is  of  such 
a  character  as  to  involve  a  plain  assertion  of  the  right  to  use  the 
land,  the  claimant's  rights  in  all  probability  are  not  affected 
by  the  failure  of  the  owner  to  take  notice  of  the  adverse  user, 
owing  to  his  absence  from  the  neighborhood  or  to  other 
causes.546 

§  92.    Possession  as  evidence  of  crime. 

(a)  Nature  of  presumption.  Personal  and  exclusive  posses- 
sion of  the  fruits' of  a  crime  recently  after  its  commission  is 
said  to  give  rise  to  a  presumption  that  the  person  in  posses- 
sion is  the  wrongdoer.847  This  so-called  presumption  is  one 

8*2  Tiffany,  Real  Prop.  §  450;  Legg  v.  Horn,  45  Conn.  409;  McKenzie 
v.  Elliott,  134  111.  156;  Parish  v.  Kaspare,  109  Ind.  586;  Talbott  v. 
Thorn,  91  Ky.  417;  Jewett  v.  Hussey,  70  Me.  433;  Stearns  v.  Janes,  12 
Allen  (Mass.)  582;  Arbuckle  v.  Ward,  29  Vt.  43.  Contra,  Wiseman  v. 
Lucksinger,  84  N.  Y.  31,  38  A.  R.  479. 

843Lanier  v.  Booth,  50  Miss.  410;  Cobb  v.  Davenport,  32  N.  J.  Law, 
369;  Trustees  of  Wadsworthville  Poor  School  v.  Jennings,  40  S.  C.  168, 
42  A.  S.  R.  854. 

844  Jesse  French  P.  &  O.  Co.  v.  Forbes,  129  Ala.  471,  87  A.  S.  R.  71. 

8*5  Daniel  v.  North,  11  East,  372 ;  American  Co.  v.  Bradford,  27  Cal. 
360;  Peterson  v.  McCullough,  50  Ind.  35;  Cleveland,  C.,  C.  &  St.  L.  R. 
Co.  v.  Huddleston,  21  Ind.  App.  621,  69  A.  S.  R.  385;  Zigefoose  v.  Zige- 
foose,  69  Iowa,  391;  Hannefin  v.  Blake,  102  Mass.  297;  Wallace  v.  Fletch- 
er, 30  N.  H.  434;  Cobb  v.  Davenport,  32  N.  J.  Law,  369;  Parker  v. 
Foote,  19  Wend.  (N.  Y.)  309. 

846  Tiffany,  Real  Prop.  §  450;    Jesse  French  P.  &  O.  Co.  v.  Forbes, 
129  Ala.  471,  87  A.  S.  R.  71;  Ward  v.  Warren,  82  N.  Y.  265;   Reimer 
v.  Stuber,  20  Pa.  458,  59  A.  D.  744;  Perrin  v.  Garfield,  37  Vt.  304.     And 
see  Carney  v.  Hennessey,  74  Conn.  107,  53  L.  R.  A.  699;  Cook  v.  Gam- 
mon,  93   Ga.   298. 

847  For  early  instances  of  this  presumption,  see  Thayer,  Prel.  Treat. 
Ev.  327.     And  see  8  Current  Law,  707. 

A   like   presumption    arises  in   civil   cases.      Thus,   in  an   action  of 


§  92a  USE  AND  POSSESSION.  367 

of  fact,  not  one  of  law.  It  does  not  make  a  prima  facie  case 
of  guilt,  and  so  shift  the  burden  of  adducing  evidence  upon 
the  shoulders  of  the  accused  to  such  an  extent  that  if  he  fails 
to  explain  his  possession  the  jury  must  necessarily  convict 
him  as  a  matter  of  law,  regardless  of  their  belief  in  his  inno- 
cence. While  the  fact  of  possession  may  be  a  suspicious  cir- 
cumstance naturally  calling  for  an  explanation  from  the  ac- 
cused, yet  in  failing  to  give  it  he  does  not  subject  himself 
absolutely  to  a  conviction.  He  merely  runs  a  risk  that,  with- 
out an  explanation,  the  jury  may  believe  him  guilty  and  find 
accordingly.  If  the  jury  do  not  believe  in  his  guilt,  they  can- 
not convict  him,  even  though  he  fails  to  explain  his  posses- 
sion. The  sole  effect  of  the  presumption,  even  in  the  absence 
of  explanatory  evidence,  is,  therefore,  not  to  require  a  con- 
viction, but  merely  to  justify  it.848  In  some  states,  however,  this 

trespass  q.  c.  f.,  a  presumption  of  guilt  arises  if  it  appears  that  a 
house,  the  removal  whereof  is  the  cause  of  action,  was  subsequently 
in  the  possession  of  the  defendant.  Finch's  Ex'rs  v.  Alston,  2  Stew.  & 
P.  (Ala.)  83,  23  A.  D.  299. 

848  ALABAMA:     Smith  v.  State,  133  Ala.  145,  91  A.  S.  R.  21. 

CONNECTICUT:     State  v.  Raymond,  46  Conn.  345. 

GEORGIA  :     Gravitt  v.  State,  114  Ga.  841,  88  A.  S.  R.  63. 

INDIAN  TERRITORY:     Oxier  v.  U.  S.,  1  Ind.  T.  85. 

IOWA:     State  v.  Richart,  57  Iowa,  245. 

KANSAS:     State  v.  Powell,  61  Kan.  81. 

MISSISSIPPI:     Stokes  v.  State,  58  Miss.  677. 

NEBRASKA:     Robb  v.  State,  35  Neb.  285. 

NEW  HAMPSHIRE:     State  v.  Hodge,  50  N.  H.  510. 

NEW  YORK:     Stover  v.  People,  56  N.  Y.  315. 

NORTH  CAROLINA:  State  v.  Rights,  82  N.  C.  675;  State  v.  McRae,  120 
N.  C.  608,  58  A.  S.  R.  808. 

OKLAHOMA:     Johnson  v.  Ter.,  5  Okl.  695. 

OREGON:     State  v.  Pomeroy,  30  Or.  16. 

TEXAS:  Boyd  v.  State,  24  Tex.  App.  570,  5  A.  S.  R.  908;  Stockman  v. 
State,  24  Tex.  App.  387,  5  A.  S.  R.  894. 

VIRGINIA:     Kibler  v.  Com.,  94  Va.  804. 

WASHINGTON:     State  v.  Walters,  7  Wash.  246. 

WISCONSIN:     Ingalls  v.  State,  48  Wis.  647. 


368  LA-W    OF   EVIDENCE.  §   92b 

view  does  not  prevail.  The  presumption  is  regarded  as  one 
of  law,  which  accordingly  makes  a  prima  facie  case  of  guilt, 
and  requires  the  jury  to  convict  in  the  absence  of  an  ex- 
planation.849 In  yet  other  states  it  has  been  held,  on  the 
other  hand,  that  recent  possession  of  stolen  property  does  not 
of  itself  justify  a  verdict  of  guilty.  In  these  jurisdictions, 
therefore,  there  arises  from  recent  possession  no  presumption 
whatever,  either  of  law  or  of  fact.850 

(b)  Illustrations.  The  presumption  most  often  arises  in 
prosecutions  for  larceny,  where  the  stolen  property  is  found 
in  the  accused's  possession  recently  after  the  commission  of 
the  offense;851  but  its  operation  is  not  confined  to  those  cases. 

Even  though  recent  possession  may  justify  a  conviction,  yet  in  some 
states  the  court  is  not  allowed  so  to  charge  the  jury.  In  these  juris- 
dictions, such  a  charge  is  deemed  faulty  as  being  upon  the  weight  of 
the  evidence,  and  the  extent  to  which  the  court  may  go  is  to  instruct 
that  recent  possession  is  a  mere  circumstance  to  be  considered  by  the 
jury  in  connection  with  the  rest  of  the  evidence  on  the  question  of  guilt. 
Blankenship  v.  State,  55  Ark.  244;  People  v.  Mitchell,  55  Cal.  236; 
Cooper  v.  State,  29  Tex.  App.  8,  25  A.  S.  R.  712.  This  instruction  may 
properly  be  given.  Shepperd  v.  State,  94  Ala.  102;  State  v.  Duncan,  7 
Wash.  336,  38  A.  S.  R.  888.  And  see  People  v.  Luchetti,  119  Cal.  501. 

849  Campbell  v.  State,  150  Ind.  74;  State  v.  Kelly,  73  Mo.  608;  State 
V.  Moore,  101  Mo.  316;  State  v.  Owsley,  111  Mo.  450,  454. 

850  People  v.  Cline,  83  Cal.  374;  People  v.  Hart,  10  Utah,  204. 

851  Reg.  v.  Langmead,  9  Cox    Cr.  Cas.  464;    U.  S.  v.  Jones,  31  Fed. 
718;  Bryant  v.  State,  116  Ala.  445;  Brooke  v.  People,  23  Colo.  375;  State 
v.    Weston,    9    Conn.    527,    25    A.    D.    46;    Keating   v.    People,    160    111. 
480;  Huggins  v.  People,  135  111.  243,  25  A.  S.  R.  357;  State  v.  Whitmer, 
77  Iowa,  557;  State  v.  Hoffman,  53  Kan.  700;  State  v.  Kelly,  50  La.  Ann. 
597;    Com.  v.  Randall,  119  Mass.   107;    State  v.  Hogard,  12  Minn.  293 
(Gil.  191);    Robb  v.  State,  35  Neb.  285;    State  v.  Adams,  2  N.  C.    (1 
Hayw.)  463;  Stockman  v.  State,  24  Tex.  App.  387,  5  A.  S.  R.  894;  State 
v.  Bishop,  51  Vt.  287;   Taliaferro  v.  Com.,  77  Va.  411;   8  Current  Law, 
707. 

The  presumption  cannot  arise  until  a  larceny  of  the  property  is 
shown.  Smith  v.  State,  133  Ala.  145,  91  A.  S.  R.  21;  State  v.  Taylor, 
111  Mo.  538;  Garcia  v.  State,  26  Tex.  209,  82  A.  D.  605.  And  the  state 
must  identify  the  property  in  the  accused's  possession  as  that  stolen. 


§  92b  USE  AND  POSSESSION.  369 

It  may  arise  as  well  in  prosecutions  for  robbery862  and  receiv- 
ing stolen  goods;883  also  in  arson,854  burglary,855  or  murder,858 

Garcia  v.  State,  26  Tex.  209,  82  A.  D.  605.  The  identity  is  a  question 
for  the  jury  where  the  prosecuting  witness,  although  he  will  not  swear 
that  the  goods  are  his,  testifies  that  they  resemble  his.  Reg.  v.  Burton, 
Dears.  Cr.  Cas.  282;  State  v.  Dale,  141  Mo.  284,  64  A.  S.  R.  513.  See, 
however,  Reg.  v.  Dredge,  1  Cox  Cr.  Cas.  235. 

852  Knickerbocker  v.  People,  43  N.  Y.  177   (semble). 

ass  Reg.  v.  Langmead,  9  Cox  Cr.  Cas.  464;  State  v.  Guild,  149  Mo.  370, 
73  A.  S.  R.  395;  Goldstein  v.  People,  82  N.  Y.  231.  Contra,  Reg.  v.  Pratt, 
4  Fost.  &  F.  315;  Durant  v.  People,  13  Mich.  351;  Castleberry  v.  State, 
35  Tex.  Cr.  App.  382,  60  A.  S.  R.  53.  And  see  People  v.  Levison,  16  Gal. 
98,  76  A.  D.  505. 

«54  state  v.  Babb,  76  Mo.  501  (semble).  And  see  Rickman's  Case,  2 
East  P.  C.  1035. 

ess  ENGLAND:  Reg.  v.  Exall,  4  Fost.  &  F.  922. 

FLORIDA:     Tilly  v.  State,  21  Fla.  242. 

GEOBGIA:  Gravitt  v.  State,  114  Ga.  841,  88  A.  S.  R.  63;  Falvey  v. 
State,  85  Ga.  157;  Davis  v.  State,  76  Ga.  16;  Lundy  v.  State,  71 
Ga.  360. 

ILLINOIS:  Magee  v.  People,  139  111.  138;  Sahlinger  v.  People,  102  111. 
241  (semble) ;  Huggins  v.  People,  135  111.  243,  25  A.  S.  R.  357. 

IOWA:  State  v.  Jennings,  79  Iowa,  513;  State  v.  La  Grange.  94 
Iowa,  60. 

MASSACHUSETTS:  Com.  v.  Millard,  1  Mass.  6;  Com.  v.  McGorty,  114 
Mass.  299. 

MISSOURI:  State  v.  Owsley,  111  Mo.  450;  State  v.  Moore,  117  Mo. 
395;  State  v.  Warford,  106  Mo.  55,  27  A.  S.  R.  322;  State  v.  Dale,  141 
Mo.  284,  64  A.  S.  R.  513. 

NEW  YORK:     Knickerbocker  v.  People,  43  N.  Y.  177. 

OKLAHOMA:     Johnson  v.  Ter.,  5  Okl.  695,  50  Pac.  90. 

TEXAS:  Dawson  v.  State,  32  Tex.  Cr.  R.  535,  40  A.  S.  R.  791;  Favro 
v.  State,  39  Tex.  Cr.  R.  452,  73  A.  S.  R.  950;  Jackson  v.  State,  28  Tex. 
App.  370,  19  A.  S.  R.  839. 

WISCONSIN:     Ryan  v.  State,  83  Wis.  486. 

And  see  People  v.  Sansome,  98  Cal.  235;  Short  v.  State,  63  Ind.  376, 
380.  Contra,  People  v.  Hannon,  85  Cal.  374;  People  v.  Beaver,  49  Cal. 
57;  State  v.  Powell,  61  Kan.  81;  People  v.  Gordon,  40  Mich.  716;  People 
v.  Hart,  10  Utah,  204;  Gravely  v.  Com.,  86  Va.  396. 

The  presumption  arises  in  burglary  cases  where  it  appears  that  the 
breaking  and  entering  and  the  larceny  were  committed  at  the  same 

Hammon,  Ev. — 24. 


370  LAW   OP  EVIDENCE.  §  92C 

when  these  are  accompanied  by  larceny;  and  other  crimes  as 
well,  including  forgery857  and  procuring  base  coin  with  intent 
to  utter  it.858 

(c)  Rebuttal.  The  presumption  of  guilt  arising  from  recent 
possession  may  be  rebutted.  If  the  accused  adduces  evidence 
of  facts  explaining  his  possession  and  tending  to  show  its  hon- 
esty, the  presumption  is  dispelled,  and  the  question  of  guilt 
is  one  for  the  jury  upon  all  the  evidence.859 

time,  but  not  otherwise.  State  v.  Rivers,  68  Iowa,  611;  State  v.  Shaffer, 
59  Iowa,  290. 

To  raise  the  presumption  in  a  prosecution  for  burglary,  the  state 
must  show  that  the  property  in  the  accused's  possession  was  taken 
from  the  building  which  was  burglariously  entered.  King  v.  State, 
99  Ga.  686,  59  A.  S.  R.  251;  Brooks  v.  State,  96  Ga.  353;  State  v.  La 
Grange,  94  Iowa,  60,  64  (semble). 

Some  cases  go  no  farther,  in  prosecutions  for  burglary,  than  to 
hold  that  recent  possession  is  admissible  in  evidence  as  a  material  fact, 
and  may,  in  connection  with  other  circumstances  tending  to  show 
guilt,  justify  a  conviction.  People  v.  Hannon,  85  Cal.  374;  Smith  v. 
People,  115  111.  17;  State  v.  Shaffer,  59  Iowa,  290;  State  v.  Powell, 
61  Kan.  81;  Stuart  v.  People,  42  Mich.  255;  State  v.  Jones,  19  Nev.  265; 
Prince  v.  State,  44  Tex.  481;  People  v.  Hart,  10  Utah,  204,  209;  State 
v.  Harrison,  66  Vt.  523,  44  A.  S.  R.  864;  Gravely  v.  Com.,  86  Va.  396; 
Wright  v.  Com.,  82  Va.  183;  Walker  v.  Com.,  28  Grat.  (Va.)  969;  Ryan 
v.  State,  83  Wis.  486;  Neubrandt  v.  State,  53  Wis.  89.  See,  however, 
People  v.  Ah  Sing,  59  Cal.  400. 

85c  Wilson  v.  U.  S.,  162  U.  S.  613;  Kibler  v.  Com.,  94  Va.  804. 

g5T  Reg.  v.  James,  4  Cox  Cr.  Gas.  90;  Com.  v.  Talbot,  2  Allen  (Mass.) 
161;  State  v.  Hodges,  144  Mo.  50. 

sss  Rex  v.  Fuller,  Russ.  &  R.  308. 

859Thayer,  Prel.  Treat.  Ev.  328;  Reg.  v.  Exall,  4  Fost.  &  F.  922,  928; 
Williams  v.  State,  40  Fla.  480,  74  A.  S.  R.  154;  State  v.  Tucker,  76  Iowa, 
232,  234;  State  v.  Gillespie,  62  Kan.  469,  84  A.  S.  R.  411;  State  v. 
Scott,  109  Mo.  226;  State  v.  Adams,  2  N.  C.  (1  Hayw.)  463;  State  v. 
Snell,  46  Wis.  524. 

If  the  accused  adduces  evidence  which  raises  a  reasonable  doubt 
as  to  whether  he  came  by  the  property  honestly,  the  jury  must  acquit. 
Blaker  v.  State,  130  Ind.  203;  State  v.  Manley,  74  Iowa,  561;  State 
v.  Kirkpatrick,  72  Iowa,  500.  Where  the  explanation  given  by  the 
accused  is  unreasonable  or  improbable,  the  burden  of  proving  its 


§  92d  USB  AND  POSSESSION.  371 

(d)  Sufficiency  of  possession.  If,  in  showing  the  accused's 
possession,  the  state  incidentally  adduces  evidence  of  facts 
which  make  it  as  consistent  with  innocence  as  with  guilt,  the 
presumption  does  not  arise.  Thus,  the  accused's  possession  of 
another's  bank  note  does  not  raise  a  presumption  of  larceny, 
if  the  additional  fact  appears  that  it  was  not  stolen  from  the 
owner,  but  lost  by  him.860 

To  raise  the  presumption,  the  possession  must  have  been  re- 
cent after  the  commission  of  the  crime.  Remote  possession 
does  not  call  for  an  explanation  from  the  accused,  nor,  with- 
out more,  justify  a  conviction.881 

It  is  often  said  that  the  presumption  does  not  arise  unless 
the  accused's  possession  was  personal862  and  exclusive.863  Thus, 

truth  is  said  to  lie  on  him;  otherwise  the  burden  is  on  the  state  to 
disprove  it.  Reg.  v.  Crowhurst,  47  E.  C.  L.  (1  Car.  &  K.)  370;  Reg. 
v.  Exall,  4  Fost.  &  F.  922,  929;  Leslie  v.  State,  35  Fla.  171;  Garcia  v. 
State,  26  Tex.  209,  82  A.  D.  605.  See,  however,  People  v.  Buelna,  81 
Cal.  135. 

seo  Hunt  v.  Com.,  13  Grat.  (Va.)  757,  70  A.  D.  443. 

86i  Rex  v.  —  — ,2  Car.  &  P.  459;  Reg.  v.  Harris,  8  Cox  Cr.  Cas.  333; 
Brooks  v.  State,  96  Ga.  353;  State  v.  Scott,  109  Mo.  226;  State  v.  War- 
ford,  106  Mo.  55,  27  A.  S.  R.  322;  Boyd  v.  State,  24  Tex.  App.  570,  5  A. 
S.  R.  908;  Matlock  v.  State,  25  Tex.  App.  654,  8  A.  S.  R.  451;  Jack- 
son v.  State,  28  Tex.  App.  370,  19  A.  S.  R.  839. 

Whether  or  not  the  possession  is  so  recent  as  to  justify  the  pre- 
sumption depends  somewhat  upon  the  nature  of  the  article  stolen, 
as  whether  it  might  pass  readily  from  hand  to  hand.  Rex  v.  Part- 
ridge, 7  Car.  &  P.  551. 

The  presumption  of  guilt  is  stronger  or  weaker  as  the  possession  is 
more  or  less  recent.  Cockin's  Case,  2  Lewin  Cr.  Cas.  235;  Reg.  v. 
Exall,  4  Fost.  &  F.  922,  927;  Williams  v.  State,  40  Fla.  480,  74  A.  S.  R. 
154;  Gablick  v.  People,  40  Mich.  292;  State  v.  Rights,  82  N.  C.  675. 

Possession  of  stolen  goods  may  nevertheless  be  a  circumstance  tend- 
ing to  criminate  the  accused,  even  though  such  a  time  has  elapsed 
that  the  possession,  of  itself,  will  not  afford  a  presumption  of  guilt. 
State  v.  Foulk,  59  Kan.  775;  State  v.  Miller,  45  Minn.  521;  State  v. 
Johnson,  60  N.  C.  (1  Winst.)  238,  86  A.  D.  434. 

882  Reg.  v.  Hughes,  14  Cox,  Cr.  Cas.  223;  Jackson  v.  State,  28  Tex. 


372  LAW   OF   EVIDENCE.  §   92e 

the  bare  fact  that  stolen  property  was  found  in  the  accused's 
barn,  which  was  open  to  all,  affords  no  presumption  of  guilt, 
if  it  does  not  appear  that  he  knew  the  property  was  there.864 
This  rule  as  to  exclusiveness  of  the  possession  is  subject  to 
important  qualifications,  however.865 

It  has  also  been  said  that  to  induce  the  presumption  the  pos- 
session must  have  been  such  as  to  involve  a  distinct  and  con- 
scious assertion  of  ownership  by  the  accused  in  the  property.866 

(e)  Possession  as  crime  per  se.  The  presumption  we  have 
just  considered  relates  to  the  weight  and  sufficiency  of  evi- 

App.  370,  19  A.  S.  R.  839;  Lehman  v.  State,  18  Tex.  App.  174,  51  A.  R. 
298.  See  Com.  v.  Bell,  102  Mass.  163. 

sesMoncrief  v.  State,  99  Ga.  295;  State  v.  Scott,  109  Mo.  226;  State 
v.  Warford,  106  Mo.  55,  27  A.  S.  R.  322;  Jackson  v.  State,  28  Tex.  App. 
370,  19  A.  S.  R.  839;  Taliaferro  v.  Com.,  77  Va.  411. 

864  People  v.  Hurley,  60  Cal.  74,  44  A.  R.  55.  And  see  State  v.  Pome- 
roy,  30  Or.  16,  25. 

ses  The  possession  required  to  raise  the  presumption  is  not  limited 
to  actual  custody  about  ^the  person  of  the  accused.  It  exists  if  the 
goods  are  in  any  place  under  his  exclusive  control.  Accordingly,  the 
goods  are  in  his  possession  if  in  his  dwelling  house,  where  he  and 
his  wife  reside  alone.  State  v.  Johnson,  60  N.  C.  (1  Winst.)  238,  86 
A.  D.  434.  And  see  Harris  v.  State,  84  Ga.  269.  Otherwise  where  he 
and  his  wife  do  not  live  together.  State  v.  Owsley,  111  Mo.  450. 

Joint  actual  possession  of  recently  stolen  goods  justifies  the  pre- 
sumption against  either  possessor.  State  v.  Raymond,  46  Conn.  345. 
And  recent  possession  of  one  conspirator  is  admissible  against  the 
other.  Clark  v.  State,  28  Tex.  App.  189,  19  A.  S.  R.  817. 

Where  some  of  the  stolen  articles  were  found  in  the  accused's  pos- 
session, and  he  offered  no  satisfactory  explanation,  he  is  not  acquitted 
of  participation  in  the  crime  by  the  fact  that  other  of  the  articles 
were  found  with  a  fellow  lodger,  who,  being  accused  of  the  crime,  ran 
away.  Grimes  v.  State,  77  Ga.  762,  4  A.  S.  R.  112. 

Possession  of  the  accused  jointly  with  others,  although  not  sufficient 
of  itself  to  justify  a  conviction,  may  nevertheless  be  considered  by 
the  jury  in  connection  with  other  circumstances  tending  to  show  guilt. 
Moncrief  v.  State,  99  Ga.  295. 

SOB  'Lehman  v.  State,  18  Tex.  App.  174,  51  A.  R.  298;  Jackson  r. 
State,  28  Tex.  App.  370,  19  A.  S.  R.  839. 


§  92e  USE  AND  POSSESSION.  373 

dence.  It  concerns  possession  as  affording  evidence  of  a  crime, 
not  as  constituting  a  crime  in  itself,  and  is  thus  to  be  distin- 
guished from  those  rules  of  substantive  criminal  law  which  re- 
late to  possession  of  certain  kinds  of  property  as  a  crime  in 
itself.  As  to  these  latter  rules,  by  the  better  opinion,  a  man 
is  not  punishable  at  common  law  for  merely  having  posses- 
sion of  articles  with  intent  to  commit  a  crime,  as  of  burglar's 
tools  with  intent  to  commit  burglary,867  stamps  or  dies  with 
intent  to  counterfeit  coin,86*  counterfeit  money  with  intent  to 
utter  it,869  or  obscene  prints  with  intent  to  publish  them;870 
though  it  is  an  indictable  offense  at  common  law  to  procure 
these  articles  with  intent  to  commit  a  crime  by  means  of 
them.871  In  some  states,  however,  the  rule  has  been  altered 
by  statute  so  as  to  make  the  mere  possession  of  such  articles 
punishable.871 

SB?  Clark  &  M.  Crimes  (2d  Ed.)    §  117. 

ses  Clark  &  M.  Crimes  (2d  Ed)  §  117.  Contra,  Rex  v.  Sutton,  Lee  t. 
Hardw.  370,  2  Strange,  1074. 

86»  Rex  v.  Heath,  Russ.  &  R.  184.  Contra,  Rex  v.  Parker,  1  Leach 
Cr.  Gas.  41. 

sToDugdale  v.  Reg.,  1  El.  &  Bl.  435,  Dears.  Cr.  Gas.  64;  Rex  v. 
Rosenstein,  2  Car.  &  P.  414  (semble). 

sit  Rex  v.  Fuller,  Russ.  &  R.  308;  Dugdale  v.  Reg.,  1  El.  &  Bl.  435, 
Dears.  Cr.  Gas.  64;  Reg.  v.  Roberts,  Dears.  Cr.  Gas.  539,  7  Cox  Cr. 
Cas.  39. 

See  page  370,  supra,  as  to  effect  of  possession  as  evidence  of  pro- 
curing base  coin  with  intent  to  utter  it. 

Possession  of  explosives  by  one  having  no  legitimate  need  of  them, 
if  accompanied  by  declarations  that  he  intended  to  use  them  for  a 
particular  unlawful  purpose,  raises  a  presumption  that  he  procured 
them  to  be  used  for  that  purpose.  Hronek  v.  People,  134  111.  139,  23 
A.  S.  R.  652. 

872  Clark  &  M.  Crimes  (2d  Ed.)  §  117;  People  v.  McDonnell,  80 
Gal.  285,  13  A.  S.  R.  159;  Com.  v.  Tivnon,  8  Gray  (Mass.)  375,  69  A.  D. 
248;  Com.  v.  Price,  10  Gray  (Mass.)  472,  71  A.  D.  668. 

Possession  of  lottery  tickets  and  winning  lists.  Ford  v.  State,  85  Md. 
465,  41  L.  R.  A.  551. 

Possession  of  marked  bottles  urithout  consent  of  owner.  People  y. 
Cannon,  139  N.  Y.  32,  36  A.  S.  R.  668. 


CHAPTER  II. 

JUDICIAL  NOTICE. 

ART.  I.  DEFINITION  AND  SCOPE. 

ABT.  II.  GOVERNMENTAL  AFFAIRS. 

ART.  III.  MATTERS  OF  NOTORIETY. 

ART.  IV.  DISCRETION  OF  COURT. 

ABT.  V.  PRELIMINARY  INVESTIGATION  BY  COURT. 

ABT.  VI.  PBIVATE  KNOWLEDGE  OF  COURT. 

ABT.  VII.  KNOWLEDGE  OF  JURORS. 

ABT.  VIII.  EFFECT  OF  JUDICIAL  NOTICE. 

ABT.  IX.  IMPEACHMENT  OF  JUDICIAL  KNOWLEDGE. 

ART.  X.  JUDICIAL  NOTICE  ON  APPEAL. 

ART.   I.     DEFINITION   AND  SCOPE. 

§  93.  Various  principles  may  dispense  absolutely  or  pro- 
visionally with  the  necessity  of  adducing  evidence  of  the  facts 
on  which  a  party  rests  his  right  of  action  or  defense.  Of  these, 
the  rules  relating  to  burden  of  proof  and  presumptions  have 
already  been  considered.  The  principle  of  judicial  notice  is 
next  to  be  examined. 

This  principle  may  be  said  to  rest  on  two  ancient  maxims: 
"Manifesta  [or  notoria]  non  indigent  probatione,"  and  "Non 
ref ert  quid  notum  sit  judici  si  notum  non  sit  in  forma  judicii. '  * 
''The  maxim  that  what  is  known  need  not  be  proved,"  says 
Professor  Thayer,1  "may  be  traced  far  back  in  the  civil  and  the 
canon  law;  indeed,  it  is  probably  coeval  with  legal  procedure 

i  Thayer,  Prel.  Treat.  Ev.  277.     See  §  128,  infra. 


§  93  DEFINITION  AND  SCOPE.  375 

itself.  We  find  it  as  a  maxim  in  our  own  books,  and  it  is  ap- 
plied in  every  part  of  our  law.  It  is  qualified  by  another  prin- 
ciple, also  very  old,  and  often  overtopping  the  former  in  its 
importance, — 'Non  refert  quid  notum  sit  judici  si  notum  non  sit 
in  forma  judicii. '  These  two  maxims  seem  to  intimate  the 
whole  doctrine  of  judicial  notice.  It  has  two  aspects, — one  re- 
garding the  liberty  which  the  judicial  functionary  has  in  tak- 
ing things  for  granted,  and  the  other  the  restraints  that  limit 
him." 

The  doctrine  of  judicial  notice  is  not  peculiar  to  the  law  of 
evidence  in  the  proper  sense  of  the  word.  "It  does,  indeed, 
find  in  the  region  of  evidence  a  frequent  and  conspicuous  ap- 
plication ;  but  the  habit  of  regarding  this  topic  as  a  mere  title 
in  the  law  of  evidence  obscures  the  true  conception  of  both 
subjects.  That  habit  is  quite  modern.  The  careful  observer 
will  notice  that  a  very  great  proportion  of  the  cases  involving 
judicial  notice  raise  no  question  at  all  in  that  part  of  the  law ; 
they  relate  to  pleading,2  [to  the  construction  of  statutes,8]  to 
the  construction  of  the  record  or  of  other  writings,4  the  legal 

2  West  v.  Rae,  33  Fed.  45.  Thus,  a  pleading  or  an  indictment,  other- 
wise fatally  indefinite,  may  be  aided  by  facts  of  which  the  court  may 
take  judicial  notice,  and  so  sustained  as  against  a  general  demurrer. 
U.  S.  v.  Johnson,  2  Sawy.  482,  Fed.  Gas.  No.  15,488;  De  Baker  v. 
Southern  Cal.  R.  Co.,  106  Cal.  257,  46  A.  S.  R.  237;  Schlicht  v.  State, 
56  Ind.  174;  Jarvis  v.  Robinson,  21  Wis.  530,  94  A.  D.  560,  561. 

s  Thus,  in  construing  a  statute,  whether  as  to  meaning,  operation, 
or  validity,  the  court  may  take  judicial  notice  of  matters  generally 
known  within  the  jurisdiction.  Moses  v.  U.  S.,  16  App.  D.  C.  428,  50 
L.  R.  A.  532;  Bloxham  v.  Consumers'  Elec.  Light  &  S.  R.  Co.,  36  Fla. 
519,  51  A.  S.  R.  44,  48;  Compagnie  Francaise  v.  State  Board  of  Health, 
51  La.  Ann.  645,  56  L.  R.  A.  795;  Prince  v.  Crocker,  166  Mass.  347,  32 
L.  R.  A.  610;  State  v.  Polk  County,  87  Minn.  325,  60  L.  R.  A.  161; 
Redell  v.  Moores,  63  Neb.  219,  55  L.  R.  A.  740;  State  v.  Nelson,  52  Ohio 
St.  88,  26  L.  R.  A.  317. 

<  North  American  Fire  Ins.  Co.  v.  Throop,  22  Mich.  146,  7  A.  R.  638, 
646;  Merchants'  Nat.  Bank  v.  Hall,  83  N.  Y.  338,  38  A.  R.  434,  438. 


376  LAW   OF   EVIDENCE.  §   93 

definition  of  words,5  the  interpretation  of  conduct,6  the  pro- 
cess of  reasoning,7  and  the  regulation  of  trials.8  In  short,  the 
cases  relate  to  the  exercise  of  the  function  of  judicature  in 
all  its  scope  and  at  every  step.  *  *  *  The  subject  of  judi- 
cial notice,  then,  belongs  to  the  general  topic  of  legal  or  ju- 
dicial reasoning.  It  is,  indeed,  woven  into  the  very  texture 
of  the  judicial  function.  In  conducting  a  process  of  judicial 
reasoning,  as  of  other  reasoning,  not  a  step  can  be  taken  with- 
out assuming  something  which  has  not  been  proved;  and  the 
capacity  to  do  this,  with  competent  judgment  and  efficiency, 
is  imputed  to  judges  and  juries  as  part  of  their  necessary  men- 
tal outfit."9  The  doctrine  does  concern  the  law  of  evidence 
in  this,  however:  that  it  tells  when  evidence  need  not  be  ad- 
duced of  certain  classes  of  facts  by  a  party  wishing  to  take 
advantage  of  them.  For  this  reason  it  is  not  only  customary, 
but  proper,  that  the  subject  of  judicial  notice  should  be  exam- 
ined in  a  treatise  on  the  law  of  evidence. 

The  power  to  take  judicial  notice  may  be  exercised,  not  only 
in  the  trial,  but  also  in  preliminary  proceedings,10  proceedings 
for  new  trial,11  and  on  appeal  or  writ  of  error.12  And  in  spe- 
cial statutory  proceedings  also  the  power  may  be  exerted.18 

s  See  §§  112,  116,  infra. 

e  Whitney  v.  U.  S.,  167  U.  S.  529,  546;  Gaynor  v.  Old  Colony  &  N.  R. 
Co.,  100  Mass.  208,  97  A.  D.  96. 

7  See  Chase  v.  Maine  Cent.  R.  Co.,  77  Me.  62,  52  A.  R.  744,  746. 

s  See  §  99 (c),  infra. 

»  Thayer,  Prel.  Treat.  Ev.  301.  In  this  connection,  attention  may  be 
called  to  the  distinction  between  real  or  demonstrative  or  autoptic 
evidence,  on  the  one  hand,  which  involves  inspection  of  a  thing  intro- 
duced in  evidence,  and  judicial  notice,  on  the  other  hand,  which  is 
taking  cognizance  of  a  fact  without  evidence.  See  Thayer,  Prel.  Treat. 
Ev.  280,  note.  See,  generally,  7  Current  Law,  1512. 

loHeaston  v.  Cincinnati  &  F.  W.  R.  Co.,  16  Ind.  275,  79  A.  D.  430. 

"Western  &  A.  R.  Co.  v.  Roberson,  22  U.  S.  App.  187,  202;  Ham  v. 
Ham,  39  Me.  263,  266. 

12  See  §  132,  infra. 


g   93  DEFINITION  AND  SCOPE.  377 

A  fact  may  be  either  ultimate  or  evidentiary,  and  judicial 
notice  may  be  taken  of  either.  Sometimes  the  court  notices 
the  ultimate  fact,  in  which  case  facts  evidentiary  of  it  become 
immaterial.  Sometimes  the  court  cannot  recognize  the  ultimate 
fact,  but  notices  facts  evidentiary  thereof.  Thus,  while  the 
court  cannot  take  judicial  notice  of  the  laws  of  a  foreign  state, 
yet  it  may  recognize  printed  books  of  its  statutes  and  printed 
reports  of  its  courts,  if  they  are  of  acknowledged  or  ascertained 
authority,  as  competent  evidence  of  the  foreign  law.14  And 
there  are  various  other  means  of  proof  of  which  the  court  will 
take  judicial  notice,  as  where  almanacs,  dictionaries,  tables, 
etc.,  are  admitted  as  evidence  'of  the  truth  of  their  contents.15 
This  class  of  cases  must  be  distinguished  from  that  in  which 
the  court  takes  notice  of  the  ultimate  facts,  and  then  resorts  to 
the  books,  etc.,  for  information.  In  this  latter  class  the  books 
need  not  be  admitted  in  evidence  ;16  the  court  may  consult  them 
in  the  exercise  of  its  function  of  taking  judicial  notice  of  the 
facts  which  they  authenticate.17  It  may  be  observed  as  a 
matter  of  fact,  however,  that  the  book  itself  is  often  admitted 
in  evidence  even  in  cases  where  the  court  might  properly  take 

is  Steenerson  v.  Great  Northern  R.  Co.,  69  Minn.  353. 

i*  Thayer,  Prel.  Treat.  Ev.  306;  The  Pawashick,  2  Lowell,  142,  Thayer, 
Gas.  Ev.  31,  Fed.  Cas.  No.  10,851;  Ennis  v.  Smith,  14  How.  (U.  S.) 
400,  426,  430;  Talbot  v.  Seeman,  1  Cranch  (U.  S.)  1.  Judicial  notice  of 
foreign  law,  see  §  105,  infra.  The  mode  of  proving  the  law  of  a  sister 
state,  the  law  of  England  and  dependencies,  and  the  law  of  other  for- 
eign countries,  presents  a  question  with  which  the  present  volume  is 
not  concerned. 

is  Thayer,  Prel.  Treat.  Ev.  307;  Rex  v.  Holt,  5  Term  R.  436;  Rex 
v.  Withers,  5  Term  R.  442,  note;  Dupays  v.  Shepherd,  Holt,  296; 
Adler  v.  State,  55  Ala.  16;  Miller  v.  Indianapolis,  123  Ind.  196;  Mun- 
shower  v.  State,  55  Md.  11,  39  A.  R.  414,  Thayer,  Cas.  Ev.  21.  Judicial 
notice  of  matters  of  science,  art,  etc.,  see  §§  110,  111,  infra.  Mortality 
tables,  see  §  113,  infra.  Photographs,  see  §  111,  infra. 

10  See  §  128,  infra. 

IT  Thayer,  Prel.  Treat.  Ev.  307.     See  §  123,  infra. 


378  "LAW   OF   EVIDENCE.  §   93 

judicial  notice  of  the  matter  of  its  contents.  While  this  is 
an  unnecessary  course,  the  result  is  the  same  in  fact  and  in 
law.18 

As  to  the  reason  of  the  principle  of  judicial  notice,  it  is  large- 
ly 'one  of  common  sense.  Common  sense  dispenses  with  formal 
proof  of  a  thing  which  is  a  matter  of  common  knowledge,  and 
obviously  susceptible  of  establishment  by  indisputable  evi- 
dence, or  which  is  a  matter  known  to  the  court  as  a  part  of  the 
government.19  The  principle  is  founded  also  on  the  necessity 
of  disposing  of  trials  within  a  reasonable  time.  It  is  a  rule 
for  expediting  justice. 

Stating  the  rule  broadly,  it  may  be  said  that  the  courts  will, 
without  evidence,  take  judicial  notice  of  whatever  ought  to 
be  generally  known  within  the  limits  of  their  territorial  juris- 
diction.20 Some  things  are  judicially  noticed  by  statutory  di- 
rection.21 Other  things  are  noticed  or  not  according  to  the 
judicial  precedents,  which  have  omitted  some  things  and  in- 
cluded others  in  a  way  not  always  reconcilable  with  a  general 
principle.  Still  other  things  are  noticed  or  not  upon  a  principle 
founded  upon  reason  and  common  sense.  The  things  of  which 
judicial  notice  is  taken  may  be  said  to  fall  under  one  or  the 

IBS  Greenl.  Ev.  §  269;  State  v.  Morris,  47  Conn.  179;  Wilson  v.  Van 
Leer,  127  Pa.  371.  See  note  440,  infra,  for  additional  cases. 

isMcKelvey,  Ev.  19;  State  v.  Intoxicating  Liquors,  73  Me.  278. 

2oLanfear   v.   Mestier,    18   La.    Ann.    497,   89   A.    D.    658,   and   note. 

21  The  statute  is  usually  in  the  form  of  a  requirement  that  certain 
facts  shall  be  sufficiently  proved  by  certain  documents,  or  that  certain 
documents  shall  be  taken  as  true  upon  production,  rather  than  in  the 
form  of  a  declaration  that  the  court  shall  take  notice  of  such  things 
without  evidence.  However,  the  form  is  a  matter  of  little  impor- 
tance in  practice.  Whether  the  document  mentioned  in  the  statute  be 
regarded  as  evidence  of  the  fact,  and  admitted  to  prove  it,  or  whether 
the  court  take  judicial  notice  of  the  fact  upon  inspection  of  the  docu- 
ment, and  exclude  the  document  from  evidence,  the  result  is  the  same. 
The  fact  is  before  the  court  and  jury  for  their  consideration.  See  note 
18,  supra,  to  the  same  effect. 


GOVERNMENTAL  AFFAIRS.  379 

other  of  two  heads:  (1)  Matters  of  governmental  concern,  and 
(2)  matters  deemed  notorious.22 

ART.    II.     GOVERNMENTAL   AFFAIRS. 

A.  Domestic  Government. 

Existence,  extent,  and  subdivisions,  §  95. 

Seal,  §  96. 

Executive  and  administrative  officers,  §  97. 

(a)  Existence,  accession,  and  term  of  office. 

(b)  Powers,  privileges,  and  duties. 

(c)  Acts. 

(d)  Signature  and  seal. 
Legislative  officers,  §  98. 
Judicial  officers — Courts,  §  99. 

(a)  Existence,  seal,  jurisdiction,  and  terms. 

(b)  Records. 

(c)  Practice. 

(d)  Officers. 
Law,  §  100. 

(a)  State  and  federal  law. 

(b)  Statutes. 

(c)  Administrative  rules. 

(d)  Municipal  resolutions  and  ordinances. 

(e)  Common  law. 

(f)  Customs  and  usages. 
Miscellaneous  matters,  §  101. 

(a)  Currency. 

(b)  Post. 

(c)  Census. 

(d)  Elections. 

B.  Foreign  Government. 

Existence,  title,  and  extent,  §  102. 
Flag  and  seal,  §  103. 
Officers  and  courts,  §  104. 
Laws,  §  105. 

(a)  General  rules. 

(b)  Exceptions  and  qualifications. 

22  See  Best,  Ev.  §  252.  Lex  non  requirit  veriflcare  quod  apparet 
curiae.  Quod  constat  curiae  opere  testium  non  indiget.  Manifesto,  [or 
notoria]  non  indigent  probatione. 


380  LAW   OF   EVIDENCE.  §  95 

C.  International  Affairs. 
Law,  §  106. 
Treaties,  §  107. 
War  and  peace,  §  108. 

§  94.  In  England,  the  administration  of  justice  is  carried  on 
by  the  sovereign,  and  his  agents  for  doing  so  are  the  courts. 
' '  The  sovereign,  in  the  lapse  of  time, ' '  says  Professor  Thayer,23 
"has  lost  something  of  his  concreteness,  where  he  has  not  lost 
it  all;  but  when  the  king,  long  ago,  sat  personally  in  court, 
and  in  later  times,  when  judicial  officers  were  in  a  true  and 
lively  sense  the  representatives  and  even  mere  deputies  of 
the  king,  it  was  an  obvious  and  easily  intelligible  thing  that 
courts  should  notice  without  evidence  whatever  the  king  him- 
self knew  or  did  in  the  exercise  of  any  of  his  official  functions, 
whether  directly  or  through  other  high  officers. "  In  the  United 
States,  where  the  judiciary  forms  one  of  the  three  co-ordinate 
branches  of  the  government,  state  and  national,  the  principle 
is  given  full  application;  and  consequently  here,  as  in  the 
mother  country,  the  courts  take  judicial  notice  of  all  that 
concerns  the  government  in  all  its  departments,  both  internally 
and  externally.  It  has  been  suggested  that  the  true  reason 
of  the  principle  is  that  it  would  be  against  the  dignity  of  the 
government  to  allow  matters  concerning  it  to  be  disputed  in 
private  litigation,  and  that  the  courts  take  judicial  notice  of 
such  matters,  and  thus  withdraw  them  from  private  dispute, 
from  reasons  of  public  policy.24 

A.  DOMESTIC  GOVERNMENT. 

§  95.    Existence,  extent,  and  subdivisions. 

The  courts  take  judicial  notice  of  the  existence  and  terri- 

23  Thayer,  Prel.  Treat.  Ev.  299.     And  see  Taylor  v.  Barclay,  2  Sim. 
213,  Thayer,  Gas.   Ev.  23. 
2*McKelvey,  Ev.  24. 


§  95  DOMESTIC    GOVERNMENT.  381 

torial  extent  of  the  state  of  whose  government  they  form  a 
part,28  and  its  colonies  ;28  and  of  the  local  divisions  of  the  coun- 
try, as  states,27  counties,28  cities,29  towns  and  villages,80  school 

as  Jones  v.  U.  S.,  137  U.  S.  202;   Carey  v.  Reeves,  46  Kan.  571;  State 
v.  Wagner,  61  Me.  178;    State  v.  Pennington,  124  Mo.  388;   State  v. 
Dunwell,  3  R.  I.  127;  Ogden  v.  Lund,  11  Tex.  688. 
'sccooke  v.  Wilson,  1  C.  B.  (N.  S.)  153.  . 

2TThorson  v.  Peterson,  9  Fed.  517;  King  v.  American  Transp.  Co.,  1 
Flip.  1,  Fed.  Cas.  No.  7,787. 

zsLyell  v.  Lapeer  County,  6  McLean,  446,  Fed.  Can.  No.  8,618; 
Smitha  v.  Flournoy's  Adm'r,  47  Ala.  345;  People  v.  Ebanks,  117  Cal. 
652,  40  L.  R.  A.  269;  Gooding  v.  Morgan,  70  111.  275;  Kan.  City,  Ft.  S. 
&  G.  R.  Co.  v.  Burge,  40  Kan.  736;  Com.  v.  Desmond,  103  Mass.  445, 
447;  State  v.  Pennington,  124  Mo.  388;  Winnipiseogee  Lake  Co.  v. 
Young,  40  N.  H.  420;  State  v.  Snow,  117  N.  C.  774;  Solyer  v.  Romanet, 
52  Tex.  562. 

The  court  will  take  notice  that  there  is  but  one  county  of  a  given 
name  in  the  state.  People  v.  Thompson,  28  Cal.  214,  218.  The  sit- 
uation, general  and  relative,  of  the  counties  in  the  state,  is  noticed 
judicially.  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Petty,  57  Ark.  359,  20 
•L.  R.  A.  434;  Boggs  v.  Clark,  37  Cal.  236;  Denny  v.  State,  144  Ind. 
503,  31  L.  R.  A.  726;  Wright  v.  Hawkins,  28  Tex.  452;  State  v.  Cun- 
ningham, 81  Wis.  440,  15  L.  R.  A.  561.  The  courts  do  not  take  judicial 
notice  that  a  county  has  adopted  township  organization.  State  v. 
Cleveland,  80  Mo.  108.  Contra,  Rock  Island  County  v.  Steele,  31  111. 
543.  It  has  been  held  that  counties  will  be  judicially  noticed  only 
when  created  by  statute,  and  not  when  created  by  commissioners  under 
a  general  law.  Buckinghouse  v.  Gregg,  19  Ind.  401. 

2»  Kan.  City,  Ft.  S.  &  G.  R.  Co.  v.  Burge,  40  Kan.  736;  Smith  v. 
Janesville,  52  Wis.  680.  See  §  100 (b),  infra,  as  to  taking  judicial  notice 
of  statutes  relating  to  cities. 

The  court  may  take  judicial  notice  that  a  certain  town  is  one  of  the 
smaller  towns  of  the  state.  Western  Union  Tel.  Co.  v.  Robinson,  97 
Tenn.  638,  34  L.  R.  A.  431. 

The  extent  of  ports  is  judicially  known  to  the  courts.  Fazakerley  v. 
Wiltshire,  1  Strange,  462,  469;  Winnipiseogee  Lake  Co.  v.  Young,  40  N. 
H.  420. 

soKidder  v.  Blaisdell,  45  Me.  461;  La  Grange  v.  Chapman,  11  Mich. 
499;  Morgan  v.  State,  64  Miss.  511;  Winnipiseogee  Lake  Co.  v.  Young, 
40  N.  H.  420;  Chapman  v.  Wilber,  6  Hill  (N.  Y.)  475;  French  v.  Barre. 


382  LAW   OF   EVIDENCE. 

districts,31  congressional  districts,32  revenue  districts,33  and 
state  and  federal  judicial  districts,34  and  the  geographical  lo- 
cation and  relative  positions  thereof.35  Thus,  the  court  will 
notice,  without  evidence,  that  a  city  or  town  is  in  the  state,38  in 
a  certain  county,37  and  whether  it  is  the  county  seat.38  Munici- 

58  Vt.  567;  Saukville  v.  State,  69  Wis.  178.  See  §  100 (b),  infra,  as 
to  taking  judicial-  notice  of  statutes  in  reference  to  towns. 

Towns  and  wards  mentioned  in  a  public  statute  will  be  noticed  ju- 
dicially. People  v.  Breese,  7  Cow.  (N.  Y.)  429;  State  v.  Cunningham, 
81  Wis.  440,  15  L.  R.  A.  561. 

siSwails   v.   State,   4    Ind.   516. 

32  U.  S.  v.  Johnson,  2  Sawy.  482,  Fed.  Cas.  No.  15,488. 

as  U.   S.   v.   Jackson,   104  U.   S.  41. 

3*U.  S.  v.  Johnson,  2  Sawy.  482,  Fed.  Cas.  No.  15,488;  People  " 
Robinson,  17  Cal.  363;  Boggs  v.  Clark,  37  Cal.  236;  Chicago,  B.  &  Q. 
R.  Co.  v.  Hyatt,  48  Neb.  161;  State  v.  Ray,  97  N.  C.  510,  512;  Com. 
v.  Fitzpatrick,  121  Pa.  109,  6  A.  S.  R.  757,  758. 

ss  Harvey  v.  Wayne,  72  Me.  430;  State  v.  Simpson,  91  Me.  83;  Lena- 
han  v.  People,  3  Hun  (N.  Y.)  165,  167;  Siegbert  v.  Stiles,  39  Wis.  533; 
State  v.  Cunningham,  81  Wis.  440,  15  L.  R.  A.  561.  As  to  the  relative 
location  of  counties,  see  note  28,  supra. 

se  King  v.  Kent's  Heirs,  29  Ala.  542;  Woodward  v.  Chicago  &  N.  W. 
R.  Co.,  21  Wis.  309. 

The  court  will  not  assume  that  there  is  only  one  city  of  a  given  name 
in  the  world.  Thayer,  Prel.  Treat.  Ev.  309;  Kearney  v.  King,  2  Barn. 
&  Aid.  301,  Thayer,  Cas.  Ev.  36;  Riggin  v.  Collier,  6  Mo.  568;  Andrews 
v.  Hoxie,  5  Tex.  171;  Whitlock  v.  Castro,  22  Tex.  108.  And  see  Com.  v. 
Wheeler,  162  Mass.  429,  431. 

37  Smitha  v.  Flournoy's  Adm'r,  47  Ala.  345;  State  v.  Powers,  25  Conn, 
48;  State  v.  Tootle,  2  Har.  (Del.)  541;  Clayton  v.  May,  67  Ga.  769;  Gil- 
bert v.  National  Cash  Register  Co.,  176  111.  288;  Sullivan  v.  People,  122 
111.  385;  Jones  v.  Lake  View,  151  111.  663;  Luck  v.  State,  96  Ind.  16; 
Indianapolis  &  C.  R.  Co.  v.  Stephens,  28  Ind.  429;  Steinmetz  v.  Ver- 
sailles &  0.  Turnpike  Co.,  57  Ind.  457;  State  v.  Reader,  60  Iowa, 
527;  Kansas  City,  Ft.  S.  &  G.  R.  Co.  v.  Burge,  40  Kan.  736;  Martin 
v.'  Martin,  51  Me.  366;  Ham  v.  Ham,  39  Me.  263,  266;  People  v.  Curley, 
99  Mich.  238;  Baumann  v.  Granite  Sav.  Bank  &  T.  Co.,  66  Minn.  227; 
Vanderwerker  v.  People,  5  Wend.  (N.  Y.)  530;  People  v.  Wood,  131 
N.  Y.  617;  Solyer  v.  Romanet,  52  Tex.  562;  Schilling  v.  Ter.,  2  Wash.  T. 
283.  It  is  held  otherwise,  in  some  states,  in  the  absence  of  statute 


§   95  DOMESTIC    GOVERNMENT.  383 

pal  subdivisions  are  noticed  judicially  for  some  purposes.  The 
courts  will  generally  notice,  without  evidence,  as  a  matter  of 
notoriety,  the  subdivision  of  urban  property  into  blocks  and 
lots.39  But  judicial  notice  is  not  taken  of  the  precise  location 
of  a  lot  in  a  subdivision  of  urban  lands,  with  respect  to  city, 
township,  or  other  divisional  lines,  without  the  aid  of  a  public 
statute.40  If  established  by  act  of  the  legislature,  judicial  no- 
tice is  taken  of  the  streets  of  a  city,  their  location  and  relation 
to  one  another;41  but  if  established  by  dedication  or  by  ordi- 
nance, these  matters  must  be  proved  the  same  as  any  other 
fact.42 

(Hoffman  v.  State,  12  Tex.  App.  406;  Boston  v.  State,  5  Tex.  App. 
383,  32  A.  R.  575;  Vivian  v.  State,  16  Tex.  App.  262);  unless  the  town 
is  the  county  seat,  in  which  case  its  location  within  the  county  is 
judicially  noticed  (Carson  v.  Dal  ton,  59  Tex.  500) ;  or  unless  it  is  or  has 
been  the  state  capital  (Lewis  v.  State  [Tex.  Cr.  App.]  24  S.  W.  903). 

While  the  court  may  know  that  there  is  a  town  of  a  given  name  in 
a  certain  county,  yet,  it  has  been  held,  the  court  cannot  assume 
that  that  name,  when  used  in  an  indictment  without  other  words  of 
description,  has  reference  to  the  town.  Com.  v.  Wheeler,  162  Mass.  429. 

Judicial  notice  of  distances  between  places  in  countries,  see  § 
110(c),  infra. 

ss  People  v.  Faust,  113  Cal.  172;  People  v.  Etting,  99  Cal.  577;  State 
v.  Pennington,  124  Mo.  388;  Carson  v.  Dalton,  59  Tex.  500;  Whitener 
v.  Belknap  &  Co.,  89  Tex.  273. 

so  Sever  v.  Lyons,  170  111.  395;  Herrick  v.  Morrill,  37  Minn.  250,  5 
A.  S.  R.  841;  McMaster  v.  Morse,  18  Utah,  21. 

40  Gunning  v.  People.,  189  111.  165,  82  A.  S.  R.  433.    Nor  will  it  be  no- 
ticed that  a  particular  number  on  a  certain  street  in  a  named  city  is 
in   a   given   municipal   ward    or    district.     Allen   v.    Scharringhausen, 
8  Mo.  App.  229. 

41  Diggins  v.  Hartshorne,  108  Cal.  154 ;  Walsh  v.  Missouri  P.  R.  Co., 
102  Mo.  582,  589.     See  Miller  v.  Indianapolis,  123  Ind.  196;   Poland  v. 
Dreyfous,  48  La.  Ann.  83. 

In  construing  a  statute  relating  to  particular  municipal  grounds,  the 
court  may  take  judicial  notice  of  the  situation  of  the  contiguous  streets 
and  squares.  Prince  v.  Crocker,  166  Mass.  347,  32  L.  R.  A.  610. 

42  Diggins  v.  Hartshorne,  108  Cal.  154;  Cicotte  v.  Anciaux,  53  Mich. 
227.     The  court  will  not  take  judicial  notice  that  a  named  street  is 


384  LAW  OF  EVIDENCE.  §  95 

Upon  the  same  principle  the  courts  of  a  state  will  take  ju- 
dicial notice  of  the  location  of  Indian  reservations  therein,43 
and  of  the  public  surveys  and  the  usual  divisions  and  subdi- 
visions thereof.44  Private  surveys  are  not  noticed  judicially,45 

not  in  a  certain  county,  although  a  street  of  that  name  may  be  gen- 
erally known  to  be  in  another  county.  Humphreys  v.  Budd,  9  Dowl. 
1000.  The  court  has  refused  to  take  judicial  notice  that  a  named 
street  is  a  thoroughfare.  Grant  v.  Moser,  5  Man.  &  G.  123,  129.  Contra, 
Whittaker  v.  Eighth  Ave.  R.  Co.,  5  Rob.  [N.  Y.]  650.  The  courts 
cannot  take  official  notice  of  the  width  of  streets  or  of  sidewalks  in 
a  city,  nor  of  ordinances  relating  to  them.  Porter  v.  Waring,  69  N. 
Y.  250.  The  condition  of  the  streets  of  a  particular  city,  in  any 
respect,  at  a  given  time  and  place,  cannot  be  noticed  judicially  unless 
a  matter  of  notoriety.  Lenahan  v.  People,  3  Hun  (N.  Y.)  164.  Particu- 
lar street  intersections  cannot  be  noticed  judicially.  Pa.  Co.  v.  Frana, 
13  111.  App.  91. 

43  French  v.  Lancaster,  2  Dak.  346;  Beebe  v.  U.  S.  (Dak.)  11  N.  W. 
505. 

44  Webb  v.  Mullins,  78  Ala.  Ill;   Quinn  v.  Windmiller,  67  Cal.  461; 
Kile  v.  Yellowhead,  80  111.  208;  Gooding  v.  Morgan,  70  111.  275;  Gardner 
v.  Eberhart,  82  111.  316;    Hill  v.  Bacon,  43   111.  477;    Murphy  v.  Hen- 
dricks,  57  Ind.  593;   Mossman  v.  Forrest,  27  Ind.  233;   Peck  v.  Sims, 
120  Ind.  345;   Wright  v.  Phillips,  2  G.  Greene   (Iowa)   191;    Stoddard 
v.  Sloan,  65   Iowa,   680;    Dexter  v.   Cranston,  41  Mich.   448;    Quinn  v. 
Champagne,   38  Minn.  322;    Muse  v.  Richards,  70  Miss.   581;    Atwater 
v.   Schenck,   9   Wis.   160.     Public   statutes  relating   to   surveys,   see   § 
100 (b),  infra. 

Judicial  notice  is  not  taken  of  the  quantity  of  land  within  given 
courses  and  distances.  Tison  v.  Smith,  8  Tex.  147. 

If  lands  are  described  by  reference  to  the  section,  township,  and  range 
of  the  government  survey,  the  court  must  take  judicial  notice  of  the 
county  in  which  they  are  located.  Rogers  v.  Cady,  104  Cal.  288,  43  A. 
S.  R.  100;  Bryan  v.  Scholl,  109  Ind.  367;  Fogg  v.  Holcomb,  64  Iowa,  621. 
If  they  are  not  so  described,  however,  the  court  cannot  take  notice 
of  what  county  they  are  in.  Kretzschmar  v.  Meehan,  74  Minn.  211. 

The  court  will  take  notice  that  a  "block"  is  not  a  subdivision  of  a 
"township,"  in  any  sense  of  the  term,  and  that  it  is  applied  only  to  sub- 
divisions of  platted  cities,  towns,  or  villages.  Herrick  v.  Morrill,  37 
Minn.  250,  5  A.  S.  R.  841. 

The  federal  courts  also  take  notice  judicially  of  the  public  surveys. 
Smith  v.  Green,  41  Fed.  455. 


§  P7a  DOMESTIC    GOVERNMENT.  335 

nor  can  the  court  take  notice  that  particular  lands  were  at  a 
time  specified  a  part  of  the  public  domain.46 

The  area  and  boundaries  of  local  subdivisions  may  be  ju- 
dicially noticed  in  a  general  way  ;47  but  the  courts  cannot  take 
official  notice  of  their  precise  boundaries,48  unless  they  are 
described  in  a  public  statute.49 

Matters  of  geography  not  relating  directly  to  the  territorial 
extent  of  the  state,  its  boundaries,  and  political  subdivisions, 
are  considered  in  another  connection.50 

§  96.    Seal. 

The  law  assumes  that  the  seal  of  the  state  is  known  to  all 
her  judges,  and  they  accordingly  require  no  evidence  that  an 
impression  purporting  to  be  the  seal  of  state  is  in  fact  such. 
Of  its  genuineness  they  take  judicial  notice.51 

§  97.    Executive  and  administrative  officers. 

(a)  Existence,  accession,  and  term  of  office.  The  principal 
officers  of  the  government,  state  and  federal,62  such  as  the 

45  Campbell  v.  West,  86  Cal.  197. 

46  Schwerdtle  v.  Placer  County,  108  Cal.  589. 

47  Denny  v.   State,  144   Ind.   503,  31  L.  R.  A.   726;    Jackson  County 
Com'rs  v.  State,  147  Ind.  476;  Kan.  City,  Ft.  S.  &  G.  R.  Co.  v.  Burge, 
40  Kan.  736;   Ham  v.  Ham,  39  Me.  263,  266;   In  re  Independence  Ave. 
Boulevard,  128  Mo.  272;  State  v.  Cunningham,  81  Wis.  440,  15  L.  R.  A. 
561;  Houlton  v.  Chicago,  St.  P.,  M.  &  0.  R.  Co.,  86  Wis.  59. 

4«Brune  v.  Thompson,  2  Q.  B.  789;  Goodwin  v.  Appleton,  22  Me.  453. 

4»De  Baker  v.  Southern  Cal.  R.  Co.,  106  Cal.  257,  46  A.  S.  R.  237; 
Ross  v.  Reddick,  1  Scam.  (111.)  73;  Kan.  City,  Ft.  S.  &  G.  R.  Co.  v. 
Burge,  40  Kan.  736;  State  v.  Jackson,  39  Me.  291;  Com.  v.  Springfield, 
7  Mass.  9;  State  v.  Pennington,  124  Mo.  388;  Wright  v.  Hawkins,  28 
Tex.  452. 

so  See  §  110 (c),  infra. 

siYount  v.  Howell,  14  Cal.  465;  Chicago  &  A.  R.  Co.  v.  Keegan,  152 

111.  413,  416;  Com.  v.  Dunlop,  89  Va.  431.     See  Lane's  Case,  2  Coke,  16. 

.62  Wells  v.  Jackson  Iron  Mfg.  Co.,  47  N.  H.  235,  90  A.  D.  575;  Major 

Hammon,  Ev. — 25. 


386  LAW  OP  EVIDENCE.  §  Q7a 

chief  executive,53  cabinet  officers,04  senators,55  the  heads  of 
departments  and  their  deputies,56  and  various  commissioned 
officers,57  are  recognized  by  the  domestic  courts  without  evi- 
dence ;  and  the  same  is  true  of  the  time  of  their  accession  to 
office,58  and  their  terms  of  service.59  This  rule  applies  to  coun- 
ty officers  also,60  but  not  to  their  deputies,61  unless  they  are 
appointed  pursuant  to  statutory  authority.62  Thus,  judicial 
notice  is  taken  of  the  appointment  and  retirement  of  sheriffs  ;63 

v.  State,  2  Sneed  (Tenn.)  11.  Judicial  officers,  see  §  99  (d),  infra. 
Foreign  officers,  see  §  104,  infra. 

ss  Major  v.  State,  2  Sneed  (Tenn.)  11;  Dewees  v.  Colo.  County,  32 
Tex.  570. 

64  Rex  v.  Jones,  2  Camp.  131;  Walden  v.  Canfield,  2  Rob.   (La.)  466. 

Bswalden  v.  Canfield,  2  Rob.  (La.)  466. 

seReyser  v.  Hitz,  133  U.  S.  138,  146;  York  &  M.  L.  R.  Co.  v.  Winans, 
17  How.  (U.  S.)  30;  People  v.  Johr,  22  Mich.  461;  Major  v.  State, 
2  Sneed  (Tenn.)  11. 

57  Gary  v.   State,  76  Ala.   78;    Follain  v.  Lefevre,  3  Rob.    (La.)    13. 

58  Gary  v.  State,  76  Ala.  78;   Hizer  v.  State,  12  Ind.  330;  Lindsey  v. 
Attorney  General,  33  Miss.  508;   State  v.  Williams,  5  Wis.  308. 

59  Gary  v.  State,  76  Ala.  78;  Stubbs  v.  State,  53  Miss.  437. 
eowetherbee  v.  Dunn,  32  Cal.  106;  Dyer  v.  Flint,  21  111.  80,  74  A.  D. 

73;  Templeton  v.  Morgan,  16  La.  Ann.  438;  Fancher  v.  De  Montegre,  1 
Head  (Tenn.)  39. 

The  treasurer  of  a  school  district  has  been  judicially  noticed  in  Wis- 
consin. State  v.  Dahl,  65  Wis.  510.  Justices  of  the  peace  and  county 
clerks,  see  §  99 (d),  infra. 

«i  Land  v.  Patteson,  Minor  (Ala.)  14;  State  Bank  v.  Curran,  10 
Ark.  142;  Joyce  v.  Joyce,  5  Cal.  449;  Slaughter  v.  Barnes,  3  A.  K.  Marsh. 
(Ky.)  412,  13  A.  D.  190. 

The  courts  cannot  take  judicial  notice  of  a  deputy  marshal.  Ward 
v.  Henry,  19  Wis.  76,  88  A.  D.  672. 

62  Himmelmann  v.  Hoadley,  44  Cal.  213;  Norvell  v.  McHenry,  1  Mich. 
227.  And  see  Martin  v.  Aultman,  80  Wis.  150. 

eaRagland  v.  Wynn's  Adm'r,  37  Ala.  32;  Ingram  v.  State,  27  Ala.  17; 
Thompson  v.  Haskell,  21  111.  215,  74  A.  D.  98;  Slaughter  v.  Barnes,  3 
A.  K.  Marsh.  (Ky.)  412,  13  A.  D.  190;  State  v.  Megaarden,  85  Minn. 
41,  89  A.  S.  R.  534;  Major  v.  State,  2  Sneed  (Tenn.)  11;  Alexander  v. 
Burnham,  18  Wis.  199. 

This  rule  does  not  apply  to  constables,  however.    State  v.  Manley,  1 


§  97c  DOMESTIC    GOVERNMENT.  387 

and  the  notaries  public  in  a  given  county  will  be  judicially  no- 
ticed by  the  courts  sitting  therein.84 

(b)  Powers,  privileges,  and  duties.    The  powers  and  duties 
of  public  officers  whose  existence  will  be  recognized  judicially 
will  also  be  noticed  by  the  courts,  especially  when  prescribed 
by  statute.65     And  judicial  notice  is  taken,  not  only  of  the 
powers,  but  also  of  the  privileges,  of  the  chief  executive  of 
the  state.66 

(c)  Acts.     Doings  of  the  executive  department  are  noticed 
judicially  by  the  courts.67     Thus,  public  proclamations  issued 
by  the  executive  department  of  the  government,  state  or  na- 
tional, are  judicially  noticed,  the  same  as  legislative  acts.68 
And  the  same  is  true  of  messages  and  other  documents  trans- 
mitted by  the  executive  to  the  legislative  branch  of  the  gov- 
ernment, and  of  many  official  reports.69    Military  orders  given 
in  time  of  war  may  also  be  officially  noticed  by  the  courts, 
where  they  directly  affect  the  civil  government  of  which  the 

Overt.  (Tenn.)  428;  Doe  d.  Broughton  v.  Blackman,  1  D.  Chip.  (Vt.) 
109. 

e*  Den  mead  v.  Maack,  2  MacArthur  (D.  C.)  475;  Hertig  v.  People, 
159  111.  237,  50  A.  S.  R.  162;  Cox  v.  Stern,  170  111.  442,  62  A.  S.  R.  385; 
Stoddard  v.  Sloan,  65  Iowa,  680. 

es  Cary  v.  State,  76  Ala.  78 ;  Sacramento  County  v.  Cent.  Pac.  R.  Co., 
61  Cal.  250,  254;  Jones  v.  Lake  View,  151  111.  663;  Inglis  v.  State,  61 
Ind.  212;  Lindsey  v.  Attorney  General,  33  Miss.  508,  529;  People  v. 
Lyman,  2  Utah,  30,  34. 

««  Elderton's  Case,  2  Ld.  Raym.  978,  980. 

CT  Prince  v.  Skillin,  71  Me.  361,  36  A.  R.  325.  Judicial  notice  of  ad- 
ministrative rules  and  regulations,  see  §  100 (c),  infra. 

es  Jones  v.  U.  S.,  137  U.  S.  202;  Armstrong  v.  U.  S.,  13  Wall.  (U.  S.) 
154;  Dowdell  v.  State,  58  Ind.  333;  Whiton  v.  Albany  City  Ins.  Co.,  109 
Mass.  24,  30.  And  see  Perkins  v.  Rogers,  35  Ind.  124,  9  A.  R.  639. 
Especially  is  this  so  if  the  proclamation  affects  matters  relating  to  the 
court's  jurisdiction.  Beebe  v.  U.  S.  (Dak.)  11  N.  W.  505.  Proclama- 
tions of  peace  and  war,  see  §  108,  infra. 

e»Kirby  v.  Lewis,  39  Fed.  66;  Wells  v.  Missouri  P.  R.  Co.,  110  Mo. 
286.  15  L.  R.  A.  847. 


388  LAW  OF  EVIDENCE.  §  97d 

court  forms  a  part.70  However,  it  is  not  the  duty  of  the  courts 
to  take  judicial  notice  of  the  execution  of  a  public  statute  by 
executive  officers  of  the  government,71  unless  their  acts  have 
been  continuous,  and  amount  to  a  practical  construction  of  the 
statute.72 

(d)  Signature  and  seal.  The  courts  will  take  judicial  notice 
of  the  signatures  of  public  officials,  not  only  high  state  and  fed- 
eral officers,73  but  many  subordinate  officers  as  well.74  Thus, 
judicial  notice  is  taken  of  the  signature  of  the  chief  executive 
of  the  state  or  nation,75  and  also  of  county  registers  and  re- 
corders.76 And  the  signature  and  seal  of  a  notary  public  are 
taken  notice  of  judicially,  and  sufficiently  authenticate  his 
acts.77 

7<>Lanfear  v.  Mestier,  18  La.  Ann.  497,  89  A.  D.  658;  Taylor  v.  Graham, 
18  La.  Ann.  656,  89  A.  D.  699;  New  Orleans  Canal  &  B.  Co.  v.  Templeton, 
20  La.  Ann.  141,  96  A.  D.  385.  Contra,  Burke  v.  Miltenberger,  19 
Wall.  (U.  S.)  519. 

The  same  is  true  of  like  orders  issued  in  the  period  of  reconstruc- 
tion. Gates  v.  Johnson  County,  36  Tex.  144. 

71  Chesapeake  &  O.  Canal  Co.  v.  Baltimore  &  O.  R.  Co.,  4  Gill  &  J. 
(Md.)   1. 

72  Bloxham  v.  Consumers'  Elec.  L.  &  S.  R.  Co.,  36  Fla.  519,  51  A.  S.  R. 
44,  48;  Westbrook  v.  Miller,  56  Mich.  148. 

73Wetherbee  v.  Dunn,  32  Cal.  106,  108;  People  v.  Johr,  22  Mich.  461; 
Wells  v.  Jackson  Iron  Mfg.  Co.,  47  N.  H.  235,  90  A.  D.  575;  Com.  v.  Dun- 
lop,  89  Va.  431.  Judicial  officers,  see  §  99 (d),  infra. 

7-tWetherbee  v.  Dunn,  32  Cal.  106;  Wood  v.  Fitz,  10  Mart.  O.  S.  (La.) 
196.  Judicial  officers,  §  99 (d),  infra. 

75Yount  v.  Howell,  14  Cal.  465;  Jones  v.  Gale's  Curatrix,  4  Mart.  O. 
S.  (La.)  635;  Wells  v.  Jackson  Iron  Mfg.  Co.,  47  N.  H.  235,  90  A.  D. 
575. 

10  Scott  v.  Jackson,  12  La.  Ann.  640;  Fancher  v.  De  Montegre,  1  Head 
(Tenn.)  40  (semble). 

Courts  do  not,  however,  take  judicial  cognizance  of  the  records  of 
land  titles  in  the  office  of  the  register  of  deeds.  Williams  v.  Langevin, 
40  Minn.  180. 

77  Anonymous,  12  Mod.  345;  Yeaton  v.  Fry,  5  Cranch  (U.  S.)  335; 
Btoddard  v.  Sloan,  65  Iowa,  680,  685;  Porter  v.  Judson,  1  Gray  (Mass.) 


§  Q9a  DOMESTIC    GOVERNMENT.  389 

§  98.    Legislative  officers. 

As  between  two  legislatures,  each  claiming  the  right  to  act, 
the  court  will  take  official  notice  of  which  is  the  lawful  one.78 
Judicial  notice  is  taken  also  of  the  sessions  of  the  legislature, 
their  beginnings  and  endings,79  its  usual  course  of  proceeding,80 
and  the  privileges  of  its  members.81  The  doings  of  the  legis- 
lative department  of  the  government  are  also  noticed  judicial- 
ly,82 the  most  important  illustration  of  this  rule  being  found  in 
the  judicial  notice  of  statutes.83  However,  by  the  weight  of 
authority,  transactions  on  the  journals  of  the  legislature  are 
not  noticed  by  the  courts  without  evidence.84 

§  99.,  Judicial  officers — Courts. 

(a)  Existence,  seal,  jurisdiction,  and  terms.  The  domestic 
courts  will  take  judicial  notice  of  the  existence  and  local  sit- 
uation of  all  tribunals  created  by  the  constitution  and  laws 
of  the  state,85  and  also  of  their  seals.86 

175;  Browne  v.  Philadelphia  Bank,  6  Serg.  &  R.  (Pa.)  484,  9  A.  D.  463. 
Foreign  notaries,  see  §  104,  infra. 

TS  Opinion  of  the  Justices,  70  Me.  600,  609. 

TO  Rex  v.  Wilde,  1  Lev.  296. 

so  Lake  v.  King,  1  Saund.  131b;   Sims  v.  Marryat,  17  Q.  B.  281,  292. 

si  Cassidy  v.  Stewart,  2  Man.  &  G.  437. 

sz  Prince  v.  Skillin,  71  Me.  361,  36  A.  R.  325. 

sa  See  §  100 (b),  infra. 

84  Rex  v.  Knollys,  1  Ld.  Raym.  10,  15;  Burt  v.  Winona  &  St.  P.  R. 
Co.,  31  Minn.  472;  Green  v.  Weller,  32  Miss.  650;  State  v.  Prank,  61 
Neb.  679  (semble);  Coleman  v.  Dobbins,  8  Ind.  156;  Grob  v.  Cush- 
man,  45  111.  119.  Contra,  Moog  v.  Randolph,  77  Ala.  597;  State  v. 
Hocker,  36  Fla.  358. 

When  the  journals  are  offered  in  evidence,  however,  they  prove  their 
own  authenticity.  Grob  v.  Cushman,  45  111.  119. 

This  is  not  a  question  whether  the  journals  are  available  to  over- 
throw an  enrolled  act. 

sBTregany  v.  Fletcher,  1  Ld.  Raym.  154;  Tucker  v.  State,  11  Md. 
322;  Com.  v.  Desmond,  103  Mass.  445,  447.  Judicial  districts,  see  §  95 
supra. 


390  LAW   OF  EVIDENCE.  §  99b 

Every  court  must  take  official  notice  of  its  own  jurisdiction,87 
and  of  the  jurisdiction  of  all  other  courts  established  in  the 
same  state  by  statute.88  A  superior  court  will  take  judicial 
notice  of  the  nature  of  the  jurisdiction  of  the  court  whose 
judgment  or  decree  it  is  revising.89 

The  dates  and  duration  of  the  terms  of  court  are  noticed 
judicially;90  and  this  is  true  even  where  the  court  in  ques- 
tion is  inferior  to  the  one  in  which  the  cause  is  being  con- 
ducted.91 

(b)  Records.  The  courts  take  judicial  notice  of  their  own 
records.92  Thus,  the  trial  court  will  notice  all  the  pleadings, 
jurisdictional  papers,  and  all  proceedings,  whether  past  or 
pending,  in  the  case  on  trial.93  So,  the  appearance  of  an  attor- 

se  Tooker  v.  Beaufort,  Sayer,  297;  Womack  v.  Dearman,  7  Port.  (Ala.; 
513. 

87  Rogers  v.  Cady,  104  Gal.  288,  290,  43  A.  S.  R.  100,  102. 

ss  Masterson  v.  Matthews,  60  Ala.  260. 

s»Chitty  v.  Bendy,  3  Ad.  &  E.  319,  324;  March  v.  Com.,  12  B.  Moii. 
(Ky.)  25,  28;  Donovan  v.  Ter.,  3  Wyo.  91. 

90  Kidder  v.  Blaisdell,  45  Me.  461. 

»iRodgers  v.  State,  50  Ala.  102;  Lindsay  v.  Williams,  17  Ala.  229; 
State  v.  Hammett,  7  Ark.  492;  Boggs  v.  Clark,  37  Cal.  236;  Anderson 
v.  Anderson,  141  Ind.  567,  568;  Lewis  v.  Wintrode,  76  Ind.  13,  16;  State 
v.  Todd,  72  Mo.  288;  State  v.  Ray,  97  N.  C.  510,  512;  State  v.  Toland, 
36  S.  C.  515,  523;  Pugh  v.  State,  2  Head  (Tenn.)  227;  Davidson  v. 
Peticolas,  34  Tex.  27;  Hancock  v.  Worcester,  62  Vt.  106;  Thomas  v. 
Com.,  90  Va.  92,  94;  Donovan  v.  Ter.,  3  Wyo.  91,  93. 

The  court  will  judicially  notice  the  time  fixed  by  law  for  the  com- 
mencement of  the  sessions  of  a  defunct  court,  but  not  the  duration  of 
its  sessions.  Gilliland  v.  Sellers'  Adm'rs,  2  Ohio  St.  223. 

The  courts  may  take  official  notice  of  the  time  of  the  commencement 
of  the  regular  sessions  of  the  county  commissioners  next  after  a  given 
date.  Collins  v.  State,  58  Ind.  5. 

The  court  will  judicially  notice  the  history  of  a  county  as  to  the 
times  and  places  of  holding  courts.  Ross  v.  Austill,  2  Cal.  183. 

92  Robinson  v.  Brown,  82  111.  279;  National  Bank  v.  Bryant,  13  Bush 
{Ky.)  419.  As  to  appellate  courts,  see  §  132,  infra. 

»3Hollenbach   v.   Schnabel,   101   Cal.   312,   40   A.   S.  R.   57;    State  v. 


§  99b  DOMESTIC   GOVERNMENT.  391 

ney  in  a  cause  is  known  judicially;9*  and,  if  he  renders  serv- 
ices in  court,  that  fact  will  be  judicially  noticed  also.95 

As  a  rule,  the  court  does  not  in  a  given  case  take  notice  of 
past  or  pending  proceedings  in  any  other  case  in  another 
court,98  or  even  in  the  same  court,97  without  evidence  thereof; 
and  this  is  so  even  though  the  other  case  affects  the  same 
subject-matter  or  the  same  parties.  However,  in  a  prosecution 
for  contempt  in  disobeying  an  order  issued  in  a  civil  action,  the 
court  takes  judicial  notice  of  the  proceedings  in  that  action.98 

Bowen,  16  Kan.  475;  Pagett  v.  Curtis,  15  La.  Ann.  451;  State  v.  Jack- 
son, 106  Mo.  174;  Searls  v.  Knapp,  5  S.  D.  325,  49  A.  S.  R.  873;  State 
v.  Bates,  22  Utah,  65,  83  A.  S.  R.  768. 

The  filing  of  a  subsequent  indictment  is  a  continuation  of  the  same 
proceeding,  and  the  court  may  therefore,  in  the  trial  of  the  latter 
notice  the  former.  State  v.  Daugherty,  106  Mo.  182. 

The  court  may  take  cognizance  ex  officio  that  pleadings  which  are 
withdrawn  have  been  held  insufficient  on  demurrer.  Hoyt  v.  Beach, 
104  Iowa,  257,  65  A.  S.  R.  461. 

A  judge  may  take  judicial  notice  of  his  own  official  acts  in  the  case; 
thus,  he  knows  whether  or  not  he  has  signed  a  certificate  of  evidence. 
Secrist  v.  Petty,  109  111.  188.  But  as  a  rule  he  may  judicially  notice 
only  such  acts  as  would  properly  go  upon  the  record.  Dines  v.  People, 
39  111.  App.  565. 

»*  Symmes  v.  Major,  21  Ind.  443. 

as  Stephenson  v.  Allison,  123  Ala,  439. 

9«Eyster  v.  Gaff,  91  U.  S.  521;  Schuler  v.  Israel,  120  U.  S.  506,  509; 
Pearson  v.  Darrington,  32  Ala.  227;  Vassault  v.  Seitz,  31  Cal.  225; 
Haber  v.  Klauberg,  3  Mo.  App.  342;  Kilpatrick  v.  Kansas  City  R.  Co., 
38  Neb.  620.  41  A.' S.  R.  741.  As  to  appellate  courts,  see  §  132, 
Infra. 

97  Stanley  v.  McElrath,  86  Cal.  449,  10  L.  R.  A.  545 ;  Lake  Merced 
Water  Co.  v.  Cowles,  31  Cal.  214;  Baker  v.  Mygatt,  14  Iowa,  131;  An- 
derson v.  Cecil,  86  Md.  490,  493;  State  v.  Edwards,  19  Mo.  674;  Daniel 
v.  Bellamy,  91  N.  C.  78;  Myers  v.  State,  46  Ohio  St.  473,  15  A.  S.  R.  638; 
Grace  v.  Ballou,  4  S.  D.  333;  McCormick  v.  Herndon,  67  Wis.  648. 
Contra,  Denny  v.  State,  144  Ind.  503,  31  L.  R.  A.  726,  731.  As  to  ap- 
pellate courts,  see  §  132,  infra. 

»s  Ex  parte  Ah  Men,  77  Cal.  198,  11  A.  S.  R.  263.  And  see  Myers  v. 
State,  46  Ohio  St.  473,  15  A.  S.  R.  638.  Contra,  State  v.  Hudson  County 


392  LAW   OF   EVIDENCE.  §   ggc 

And  in  the  trial  of  an  issue  in  garnishment  proceedings  the  court 
will  take  judicial  notice  of  the  existing  judgment  in  the  prin- 
cipal action  against  the  defendant  therein."  And  in  an  action 
on  an  attachment  bond  the  court  will  take  official  notice  of 
the  pendency  of  an  appeal  from  its  order  dissolving  the  attach- 
ment.100 Standing  orders  of  the  court,  such  as  an  order  desig- 
nating a  bank  as  the  court  depositary,  are  also  judicially  no- 
ticed in  all  cases.101 

If  the  truth  of  certain  matter  be  admitted  in  the  pleadings 
of  the  parties  litigant,  or  in  open  court,  the  court  will  take 
judicial  notice  of  the  matter,  as  being  upon  its  own  records, 
and  evidence  is  not  only  unnecessary  to  establish  the  admitted 
facts,  but  is  ordinarily  inadmissible  to  prove  the  contrary.102 

(c)  Practice.  Every  court  has  judicial  knowledge  of  its 
own  practice,103  including  rules  prescribed  by  it  in  regulation 
thereof;104  and  of  the  practice  of  other  courts  constituted  by 
the  same  authority.105  But  a  court  of  review  does  not  take 
judicial  notice  of  the  rules  of  an  inferior  court.106 

Elec.  Co.,  61  N.  J.  Law,  114.  And  see  New  Orleans  v.  Steamship  Co., 
20  Wall.  (U.  S.)  387. 

»9Kenosha  Stove  Co.  v.  Shedd,  82  Iowa,  540;  Farrar  v.  Bates,  55  Tex. 
193. 

100  Maxwell  v.  Griffith,  20  Wash.  106. 

101  Jones  v.   Merchants'  Nat.  Bank,   33  U.  S.   App.  703,   35  L.  R.  A. 
698. 

102  See  §§  135,  136,  infra. 

103  See  Lane's  Case,  2  Coke,  16. 

104  Davis  v.  Standish,  26  Hun   (N.  Y.)   608. 

105  Newell  v.  Newton,  10  Pick.    (Mass.)   470,  472.     Judicial  notice  is 
taken  of  the  origin,  form,  and  nature  of  the  proceedings  of  courts  of 
inquest.     State  v.  Marsh,  70  Vt.  288. 

ice  Van  Sandau  v.  Turner,  6  Q.  B.  773;  Cutter  v.  Caruthers,  48  Cal. 
178;  Kindel  v.  Le  Bert,  23  Colo.  385,  58  A.  S.  R.  234;  Cornelison  v. 
Foushee,  19  Ky.  L.  R.  417,  40  S.  W.  680,  impliedly  overruling  March 
v.  Com.,  12  B.  Mon.  (Ky.)  25,  28;  Cherry  v.  Baker,  17  Md.  75,  and 
Scott  v.  Scott,  17  Md.  78,  impliedly  overruling  Contee  v.  Pratt,  9  Md. 
67,  and  Oliver's  Ex'rs  v.  Palmer,  11  Gill  &  J.  (Md.)  426. 


§  99d  DOMESTIC    GOVERNMENT.  395 

(d)  Officers.  Judicial  notice  is  taken  of  the  existence,  ap- 
pointment, and  retirement  of  judges  of  courts  of  record;107 
of  the  districts  to  which  the  individual  judges  are  assigned  ;108 
and  of  their  discharge  of  the  duties  of  the  office,  and  recognition 
as  judges  by  the  officers  and  people  of  the  state.109  And  this 
is  true  even  where  the  court  in  question  is  inferior  to  the  one 
in  which  the  cause  rests.110  Accordingly,  if  a  judge  of  a  lower 
court  of  general  jurisdiction  has  retired  or  resigned,  the  court 
of  review  will  notice  it  without  evidence.111 

Justices  of  the  peace  are  recognized  judicially  the  same  as 
other  county  officers;112  and  judicial  notice  is  taken  also  of 

107  Gilliland  v.  Seller's  Adm'rs,  2  Ohio  St.  223;  Major  v.  State,  2 
Sneed  (Tenn.)  11.  Contra,  Skipp  v.  Hooke,  2  Strange,  1080;  Van 
Sandau  v.  Turner,  6  Q.  B.  773,  786  (semble).  That  a  certain  person  was 
chief  justice  of  the  province  at  a  given  time  in  the  past  was  judicially 
noticed  in  Watson  v.  Hay,  3  Kerr  (N.  B.)  559. 

loswalcott  v.  Wells,  21  Nev.  47,  54,  37  A.  S.  R.  478,  483;  Hancock  v. 
Worcester,  62  Vt.  106. 

109  Walcott  v.  Wells,  21  Nev.  47,  54,  37  A.  S.  R.  478,  483. 

no  San  Joaquin  County  v.  Budd,  96  Cal.  47,  51;  Graham  v.  Anderson, 
42  111.  514,  92  A.  D.  89;  Russell  v.  Sargent,  7  111.  App.  98;  Ellsworth 
v.  Moore,  5  Iowa,  486;  Kennedy  v.  Com.,  78  Ky.  447;  Ripley  v.  Warren, 
2  Pick.  (Mass.)  592  (quaere);  State  v.  Ray,  97  N.  C.  510,  512;  Com.  v. 
Fitzpatrick,  121  Pa.  109,  6  A.  S.  R.  757,  758;  Kilpatrick  v.  Com.,  31 
Pa.  198;  Donohoo's  Lessee  v.  Brannon,  1  Overt.  (Tenn.)  327. 

However,  the  appellate  court  cannot  take  official  notice  that  certain 
persons  who  are  sued  as  individuals  are  identical  with  persons  of  the 
same  names  who  are  the  judges  of  a  superior  court  in  the  county  from 
which  the  case  comes  for  review.  San  Joaquin  County  v.  Budd,  96  Cal. 
47. 

in  Ex  parte  Peterson,  33  Ala.  74;  People  v.  Ebanks,  120  Cal.  626; 
People  v.  McConnell,  155  111.  192. 

112  Ede  v.  Johnson,  15  Cal.  53;  Graham  v.  Anderson,  42  111.  514,  92 
A.  D.  89;  Gilbert  v.  Nat.  Cash  Register  Co.,  176  111.  288;  Hibbs  v.  Blair, 
14  Pa.  413. 

The  termination  on  a  certain  date,  by  statute,  of  the  terms  of  all  the 
justices  of  the  peace  in  the  state,  will  be  taken  notice  of  without  evi- 
dence. Stubbs  v.  State,  53  Miss.  437. 


394  LAW   OF   EVIDENCE.  §   99d 

their  signatures.113  This  rule  does  not,  of  course,  apply  to 
justices  of  the  peace  constituted  by  a  state  other  than  that  in 
which  the  court  exercises  jurisdiction  ;114  nor  is  it  judicially  no- 
ticed whether  or  not  any  justice  of  the  peace  resides  in  a  certain 
city;115  nor  whether  a  certain  justice  resides  in  a  particular 
municipal  district  or  ward.116 

Every  court  will  take  judicial  notice  of  its  own  officers.117 
Thus,  judicial  notice  is  taken  of  the  clerks  of  the  various  courts 
of  general  jurisdiction  throughout  the  state.118  And  the  courts 
will  take  notice  officially  of  the  attorneys  who  are  licensed 
to  practice  therein,119  and  of  the  prosecuting  attorneys.120  How- 
ever, a  superior  court  does  not  take  judicial  notice  of  the  at- 
torneys who  are  licensed  to  practice  in  an  inferior  court.121 

Judicial  notice  is  taken  of  the  signatures  and  seals  of 'the 
officers  of  the  court.122  Thus,  the  signature  of  the  clerk  of 

us  Ede  v.  Johnson,  15  Cal.  53;  Despau  v.  Swindler,  3  Mart.  (N.  S.; 
La.)  705. 

11*  In  re  Keeler,  Hempst.  306,  Fed.  Gas.  No.  7,637. 

us  Koenig  v.  State,  33  Tex.  Cr.  App.  367,  47  A.  S.  R.  35. 

us  Allen  v.  Scharringhausen,  8  Mo.  App.  229. 

117  Miller  v.  Matthews,  87  Md.  464;  Mackinnon  v.  Barnes,  66  Barb. 
(N.  Y.)  91,  100.  Otherwise  as  to  officers  of  other  courts.  Norvell  v. 
McHenry,  1  Mich.  227. 

us  White  v.  Rankin,  90  Ala.  541;  Dyer  v.  'Last,  51  111.  179;  Ham- 
mann  v.  Mink,  99  Ind.  279;  Major  v.  State,  2  Sneed  (Tenn.)  11;  State 
v.  Cole,  9  Humph.  (Tenn.)  625. 

In  some  states,  deputy  clerks  also  are  judicially  noticed.  Norvell  v. 
McHenry,  1  Mich.  227. 

Judicial  notice  will  not  be  taken  of  clerks  of  inferior  courts  of  lim- 
ited jurisdiction.  Davis  v.  McEnaney,  150  Mass.  451,  452. 

119  Ferris  v.  Commercial  Nat.  Bank,  158  111.  237;  People  v.  Nevins,  I 
Hill  (N.  Y.)  154. 

The  court  cannot  take  notice  that  a  member  of  the  bar  has  removed 
from  the  state.  Button  v.  Chicago,  St.  P.,  M.  &  O.  R.  Co.,  98  Wis.  157. 

120  Major  v.  State,  2  Sneed  (Tenn.)  11;  People  v.  Lyman,  2  Utah,  30. 

121  Clark  v.  Morrison  (Ariz.)   52  Pac.  985. 

i22Alcock  v.  Whatmore,  8  Dowl.  615;  Alderson  v.  Bell,  9  Cal.  315; 


§   IQOa  DOMESTIC    GOVERNMENT.  395 

court  is  judicially  noticed;128  and  the  same  is  true  of  the  sig- 
nature of  a  member  of  the  bar.124  Evidence  of  the  correctness 
of  the  signature  is  not  needful. 

§  100.    Law. 

The  courts  take  judicial  notice  of  the  law  of  the  forum, 
including  all  subsidiary  systems  that  go  to  make  it  up,  and 
whether  it  be  found  in  constitution,  statute,  or  judicial  prece- 
dent. This  is  done,  not  only  because  the  law  is  a  matter  of 
notoriety,  but  because  of  the  necessity  of  doing  so  in  order 
to  carry  on  the  administration  of  justice.125 

(a)  State  and  federal  law.  The  federal  constitution  is  no- 
ticed judicially  by  the  federal  courts,  and  also  by  the  courts  of 
the  various  states  of  the  Union.  And  the  same  is  true  of 
treaties  existing  between  the  United  States  and  foreign  na- 
tions.126 Federal  law  of  other  source,  whether  statutory  or 
judge-made,  is  noticed,  not  only  by  the  courts  of  the  United 
States,  but  also  by  the  several  state  courts.127 

Dyer  v.  Last,  51  111.  179;  State  v.  Postlewait,  14  Iowa,  446;  Macklnnon 
v.  Barnes,  66  Barb.  (N.  Y.)  91,  100.  . 

128  Bishop  v.  State,  30  Ala.  34;  Yell  v.  Lane,  41  Ark.  53;  Hammann 
v.  Mink,  99  Ind.  279;  State  v.  Cole,  9  Humph.  (Tenn.)  625.  The  sig- 
nature of  the  deputy  clerk  also  is  noticed  judicially  in  some  states. 
Norvell  v.  McHenry,  1  Mich.  227. 

i2*Ripley  v.  Burgess,  2  Hill  (N.  Y.)  360.  An  attorney's  signature 
is  judicially  noticed  only  when  it  is  written  in  the  performance  of  an 
official  act  as  attorney.  Masterson  v.  Le  Claire,  4  Minn.  163  (Gil. 
108). 

The  signature  of  a  party  to  a  cause  is  not  noticed  judicially.  Alder- 
son  v.  Bell,  9  Cal.  315. 

125  Norman  v.  Kentucky  Board  of  Managers,  93  Ky.  537,  18  L.  R.  A. 
656.    Thus,  the  courts  of  a  state  will  take  official  notice  of  its  consti- 
tution.   Vance   v.   Farmers'    &   M.    Sav.    Bank,    1    Blackf.    (Ind.)    79; 
Graves  v.  Keaton,  3  Cold.  (Tenn.)  8. 

126  See  §  107,  infra,  as  to  treaties. 

i2T  Daggett  v.  Colgan,  92  Cal.  53,  27  A.  S.  R.  95,  96;  Semple  v.  Hagar, 
27  Cal.  163;  Morris  v.  Davidson,  49  Ga.  361;  Gooding  v.  Morgan,  70 


396  LAW   OF   EVIDENCE. 

The  several  state  constitutions  are  judicially  noticed  by  the 
courts  of  the  respective  states,128  and  also  by  the  federal  courts. 
Since  the  judicial  power  conferred  on  the  general  government 
by  the  federal  constitution  extends  to  many  cases  arising  un- 
der the  laws  of  the  individual  states,  the  federal  courts  take 
judicial  notice,  not  only  of  the  laws  of  the  United  States,  but 
also  of  the  laws  of  the  various  states,  whether  statutory  or 
judge-made ;  following  the  construction  which  has  been  placed 
upon  the  state  constitutions  and  statutes  by  the  highest  courts 
of  the  state.129  And  this  applies,  not  only  to  the  states  com- 
prising the  judicial  district  where  the  court  sits,130  but  to  all 

111.  275;  Dickenson  v.  Breeden,  30  111.  279;  Buchanan  v.  Witham,  36 
Ind.  257,  258;  Laidley  v.  Cummings,  83  Ky.  606;  Papin  v.  Ryan,  32 
Mo.  21;  Benner  v.  Atlantic  Dredging  Co.,  134  N.  Y.  156,  30  A.  S.  R. 
649,  652;  Kessel  v.  Albetis,  56  Barb.  (N.  Y.)  362;  Mims  v.  Swartz,  37 
Tex.  13;  State  v.  Bates,  22  Utah,  65,  83  A.  S.  R.  768;  Bird  v.  Com.,  21 
Grat.  (Va.)  800. 

An  act  of  congress  will  be  judicially  noticed  by  a  state  court,  even 
though  it  relates  exclusively  to  the  District  of  Columbia.  Chesapeake 
&  O.  Canal  Co.  v.  Baltimore  &  0.  R.  Co.,  4  Gill  &  J.  (Md.)  1,  63;  Bay- 
ly's Adm'r  v.  Chubb,  16  Grat.  (Va.)  284.  Thus,  the  laws  of  Mary- 
land having,  by  act  of  congress,  been  continued  in  force  in  that 
part  of  the  District  of  Columbia  which  was  ceded  by  that  state, 
they  thereby  became  laws  of  the  United  States,  of  which  all  courts, 
state  and  federal,  are  bound  to  take  notice.  Bird  v.  Com.,  21  Grat. 
(Va.)  800.  Even  where  state  laws  are  incorporated  into  an  act  of 
congress  by  mere  implication,  yet  the  courts  of  a  sister  state  will 
therefore  notice  them  without  evidence.  Flanigen  v.  Washington  Ins. 
Co.,  7  Pa.  306. 

128  Vance  v.  Farmers'  &  M.  Bank,  1  Blackf.  (Ind.).  79;  Graves  v. 
Keaton,  3  Cold.  (Tenn.)  8. 

i29Elmendorf  v.  Taylor,  10  Wheat.  (U.  S.)  152;  Post  v.  Supervisors, 
105  U.  S.  667;  Flash  v.  Conn,  109  U.  S.  371;  Christy  v.  Pridgeon,  4  Wall. 
(U.  S.)  196. 

The  federal  courts  will  comply  with  a  state  statute  expressly  or 
impliedly  requiring  private  or  special  acts  to  be  judicially  noticed. 
See  page  401,  infra. 

iso  u.  S.  v.  Turner,  11  How.  (U.  S.)  663. 


§   lOOb  DOMESTIC    GOVERNMENT.  397 

the  other  states  as  well.131    The  law  of  all  the  states  is  judicially 
noticed  by  all  the  federal  courts. 

(b)  Statutes.  The  existence  and  provisions132  of  general  or 
public  statutes  prevailing  in  the  state  where  the  court  exer- 
cises jurisdiction,  the  time  of  their  taking  effect,133  and  the 
facts  which  they  recite,134  are  noticed  by  the  courts  without 
evidence;  and  the  same  is  true  of  the  history  of  legislation  in 
the  state  with  reference  to  a  public  matter.136  Thus,  the  courts 

"I  Fourth  Nat.  Bank  v.  Francklyn,  120  U.  S.  747,  751;  Hanley  v. 
Donoghue,  116  U.  S.  1,  6;  Owings  v.  Hull,  9  Pet.  (U.  S.)  607,  Thayer, 
Cas.  Ev.  24;  Gormley  v.  Bunyan,  138  U.  S.  623;  Elwood  v.  Flannigan, 
104  U.  S.  562;  Lamar  v.  Micou,  114  U.  S.  218;  Mut.  L.  Ins.  Co.  v.  Hill, 
97  Fed.  263,  49  L.  R.  A.  127;  Mut.  L.  Ins.  Co.  v.  Dingley,  100  Fed.  408, 
49  L.  R.  A.  132. 

This  rule  does  not  apply  to  the  laws  of  the  Indian  nations,  however, 
and,  accordingly,  they  must  be  proved.  Wilson  v.  Owens,  86  Fed.  571; 
Turner  v.  Fish,  28  Miss.  306. 

The  federal  courts  will  take  judicial  notice  of  the  laws  of  one  of 
the  states  of  the  Confederation  before  the  constitution  was  adopted. 
Loree  v.  Abner,  6  U.  S.  App.  649. 

The  supreme  court  of  the  United  States  cannot,  in  reviewing  the 
judgment  of  a  state  court,  take  judicial  notice  of  the  law  of  a  sister 
state,  unless  the  state  court  took,  or  might  properly  have  taken,  judi- 
cial notice  thereof.  See  §  132,  infra. 

isz  Merchants'  Exch.  Bank  v.  McGraw,  59  Fed.  972;  People  v.  Hill, 
163  111.  186,  36  L.  R.  A.  634;  Parent  v.  Walmsly's  Adm'r,  20  Ind.  82; 
Hammond's  Lessee  v.  Inloes,  4  Md.  138;  Stiles  v.  Stewart,  12  Wend. 
(N.  Y.)  473,  27  A.  D.  142;  People  v.  Herkimer,  4  Cow.  (N.  Y.)  345,  15 
A.  D.  379;  Horn  v.  Chicago  &  N.  W.  R.  Co.,  38  Wis.  463.  The  court 
will  take  judicial  knowledge  of  the  terms  of  a  statute,  even  though 
the  pleadings  purport  to  set  it  forth,  and  misstate  its  provisions.  See 
note  407,  infra. 

As  to  the  execution  and  practical  construction  of  a  statute  by  the 
executive  department,  see  §  97  (c),  supra. 

issHeaston  v.  Cincinnati  &  F.  W.  R.  Co.,  16  Ind.  275,  79  A.  D.  430; 
Pierson  v.  Baird,  2  G.  Greene  (Iowa)  235;  Attorney  General  v.  Foote, 
11  Wis.  14,  78  A.  D.  689. 

is*  Rex  v.  De  Berenger,  3  Maule  &  S.  67,  69;  Lane  v.  Harris,  16  Ga. 
217. 

135  stout  v.  Grant  County  Com'rs,  107  Ind.  343;  Pierce  v.  Drew,  136 


398  LAW  OF   EVIDENCE. 

take  judicial  notice  of  statutes  relating  to  public  lands,138  and, 
it  seems,  to  weights  and  measures.137  And  the  expiration,  sus- 
pension, or  repeal  of  a  statute  will  be  judicially  noticed  under 
the  same  conditions  as  would  the  enactment  of  the  statute.138 
Private  or  special  acts  are  not  generally  noticed  by  the  courts- 
without  evidence,  but  must  be  proved,139  since  they  "are  rather 
exceptions  than  rules,  being  those  which  operate  only  on  par- 
ticular persons  and  private  concerns."140 

Mass.  75,  49  A.  R.  7,  10;  Harrington  v.  Providence,  20  R.  I.  233,  38  L. 
R.  A.  305. 

lae  People  v.  Oakland  Water  Front  Co.,  118  Cal.  234;  Dickenson  v. 
Breeden,  30  111.  279;  Dolph  v.  Barney,  5  Or.  191;  Duren  v.  Houston  & 
T.  C.  R.  Co.,  86  Tex.  287;  Houlton  v.  Chicago,  St.  P.,  M.  &  0.  R.  Co.,  86. 
Wis.  59. 

An  act  of  congress  granting  the  right  to  lay  out  public  high- 
ways over  the  public  land  will  be  noticed  judicially.  Schwerdtle  v. 
Placer  County,  108  Cal.  589.  It  has  been  held  that  an  act  for  the  sur- 
vey of  a  particular  tract  of  public  land  is  not,  as  a  rule,  such  a  public 
statute  as  the  courts  are  bound  to  notice  judicially.  Allegheny  v. 
Nelson,  25  Pa.  332. 

137  Hockin  v.  Cooke,  4  Term  R.  314;  Mays  v.  Jennings,  4  Humph. 
(Tenn.)  102.  In  the  absence  of  statute,  the  courts  cannot  take  judicial 
notice  of  a  rule  for  the  measurement  of  corn  in  the  shuck.  South  & 
N.  A.  R.  Co.  v.  Wood,  74  Ala.  449. 

las  Terry  v.  Merchants'  &  P.  Bank,  66  Ga.  177;  State  v.  O'Conner,  13 
La.  Ann.  486;  Springfield  v.  Worcester,  2  Gush.  (Mass.)  52,  61;  Wikel 
v.  Jackson  County  Com'rs,  120  N.  C.  451. 

The  repeal  of  an  act  of  municipal  incorporation  will  be  noticed 
judicially.  Belmont  v.  Morrill,  69  Me.  314. 

The  suspension  of  the  statute  of  limitations  in  various  states  during 
the  Civil  War  will  be  noticed  judicially.  The  Protector,  12  Wall.  (U. 
S.)  700;  Perkins  v.  Rogers,  35  Ind.  124,  9  A.  R.  639;  East  Tenn.  Iron, 
Mfg.  Co.  v.  Gaskell,  2  Lea  (Tenn.)  742,  748;  Caperton  v.  Martin,  4  W. 
Va.  138,  6  A.  R.  270. 

issLeland  v.  Wilkinson,  6  Pet.  (U.  S.)  317;  Broad  St.  Hotel  Co.  T. 
Weaver's  Adm'r,  57  Ala.  26;  Perdicaris  v.  Trenton  City  Bridge  Co.,  29- 
N.  J.  Law,  367;  Hailes  v.  State,  9  Tex.  App.  170;  Horn  v.  Chicago  &  N. 
W.  R.  Co.,  38  Wis.  463.  This  rule  has  been  changed  by  statute  in  some 
states.  See  page  400,  infra. 

140  1  Bl.  Comm.  86. 


§  lOOb  DOMESTIC    GOVERNMENT.  399 

A  public  act  will  be  noticed  judicially,  even  though  it  is 
passed  in  amendment  of  a  private  one.141  And  amendments  or 
supplements  of  a  public  act  will  be  judicially  noticed,  even 
though  made  by  private  or  special  act.142 

If  a  pre-existing  public  statute  is  incorporated  into  an  other- 
wise private  act,  either  expressly  or  by  direct 'reference,  the 
latter  thereby  becomes  a  public  act,  and  will  be  judicially 
noticed  as  such.143  So,  a  new  provision  may  be  noticed  with- 
out evidence,  if  general  or  public,  even  though  it  be  embodied 
in  an  otherwise  private  act;144  as  where  a  corporate  charter 
authorizes  the  company  to  become  sole  surety  in  all  cases 
where  two  or  more  sureties  are  otherwise  required  by  law,  and 
further  authorizes  the  courts  to  approve  a  bond  so  made.145 

A  statute  may  be  restricted  in  its  operation  to  a  specified  lo- 
cality less  than  all  the  state,  and  yet  be  public,  if  it  applies 
generally  to  all  persons  in  that  locality.148  It  is  upon  this  prin- 
ciple that  statutes  incorporating  particular  municipal  corpora- 
tions are  recognized  by  the  courts  without  evidence.147 

1*1  Lavalle  v.  People,  6  111.  App.  157. 

"2  Unity  v.  Burrage,  103  U.  S.  447;  Jemison  v.  Planters'  &  M.  Bank, 
17  Ala.  754;  Castello  v.  Landwehr,  28  Wis.  522.  See  Belmont  v.  Mor- 
rlll,  69  Me.  314,  317;  Miller  v.  Matthews,  87  Md.  464. 

1*3  Hooker  v.  Greene,  50  Wis.  271. 

i**  Newberry  Bank  v.  Greenville  &  C.  R.  Co.,  9  Rich.  Law  (S.  C.)  495; 
Wright  v.  Hawkins,  28  Tex.  452,  471. 

1*5  Miller  v.  Matthews,  87  Md.  464. 

i*«  Unity  v.  Burrage,  103  U.  S.  447,  454;  Bevens  v.  Baxter,  23  Ark. 
387;  Levy  v.  State,  6  Ind.  281;  Covington  v.  Hoadley,  83  Ky.  444; 
State  v.  Jackson,  39  Me.  291;  Hammond's  Lessee  v.  Inloes,  4  Md.  139; 
Burnham  v.  Webster,  5  Mass.  266;  Bretz  v.  N.  Y.,  6  Rob.  (N.  Y.)  325; 
State  v.  Cooper,  101  N.  C.  684,  688;  Meshke  v.  Van  Doren,  16  Wis.  319. 

i*TAlbrittin  v.  Huntsville,  60  Ala.  486,  31  A.  R.  46,  48;  Arndt  v. 
Cullman,  132  Ala.  540,  90  A.  S.  R.  922;  People  v.  Potter,  35  Cal.  110; 
Macey  v.  Titcombe,  19  Ind.  135;  Stier  v.  Oskaloosa,  41  Iowa,  353; 
Prell  v.  McDonald,  7  Kan.  426,  12  A.  R.  423;  Ex  parte  Wygant,  39  Or. 
429.  87  A.  S.  R.  673;  State  v.  Murfreesboro,  11  Humph.  (Tenn.)  216; 


400  LAW  OF   EVIDENCE. 

General  incorporation  laws,  municipal  and  otherwise,  being 
public  acts,  are  of  course  noticed  by  the  courts  without  evi- 
dence;148 but  judicial  cognizance  is  not  taken  of  whether  a 
particular  company  or  a  particular  body  of  people  have  taken 
advantage  of  such  laws.149  Nor,  as  a  rule,  can  the  court  take 
judicial  notice  of  charters  specially  granted  by  the  legislature 
to  private  corporations.150  This  latter  rule  is  subject  in  some 
states  to  two  exceptions.  Acts  incorporating  banks151  and 

Winooski  v.  Gokey,  49  Vt.  282;  Duncan  v.  Lynchburg  (Va.)  48  L.  R. 
A.  331;  Beasley  v.  Beckley,  28  W.  Va.  81;  Terry  v.  Milwaukee,  15  Wis. 
490.  Contra,  Butler  v.  Robinson,  75  Mo.  192. 

The  same  is  true  of  a  statute  recognizing,  though  not  incorporating, 
a  municipal  corporation.  Swain  v.  Comstock,  18  Wis.  463. 

Street  improvement  acts  relating  to  the  city  and  county  of  San 
Francisco  are  noticed  judicially  by  the  supreme  court  of  California. 
Conlin  v.  Board  of  Sup'rs,  99  Cal.  17,  37  A.  S.  R.  17. 

148  Washington  v.  Finley,  10  Ark.  423;   Braceville  Coal  Co.  v.  People, 
147  111.  66,  72,  37  A.  S.  R.  206,  210;  Heaston  v.  Cincinnati  &  F.  W.  R.  Co., 
16  Ind.  275,  79  A.  D.  430;   Portsmouth  Livery  Co.  v.  Watson,  10  Mass. 
91;  Hopkins  v.  Kan.  City,  St.  J.  &  C.  B.  R.  Co.,  79  Mo.  98. 

Judicial  notice  of  special  charters  and  general  laws  of  incorpora- 
tion, see,  also,  1  Clark  &  M.  Priv.  Corp.  §  65. 

149  Danville  &  W.  L.  P.  Co.  v.  State,  16  Ind.  456;  Johnson  v.  Indian- 
apolis Common  Council,  16  Ind.  227;   Hard  v.  Decorah,  43  Iowa,  313; 
Hopkins  v.  Kansas  City,  St.  J.  &  C.  B.  R.  Co.,  79  Mo.  98;   Temple  v. 
State,  15  Tex.  App.  304,  49  A.  R.  200;  Koenig  v.  State,  33  Tex.  Cr.  App. 
367,  47  A.  S.  R.  35.     Contra,  by  statute,  Jones  v.  Lake  View,  151  111. 
663;  Doyle  v.  Bradford,  90  111.  416;   Bessette  v.  People,  193  111.  334,  56 
L.  R.  A.  558. 

iso  Portsmouth  Livery  Co.  v.  Watson,  10  Mass.  91.  And  see  the  two 
notes  following.  Contra,  Jackson  v.  State,  72  Ga.  28.  All  acts  of  in- 
corporation are  declared  by  statute  to  be  public,  in  some  states,  and 
they  are  accordingly  judicially  noticed  as  such.  Durham  v.  Daniels, 
2  G.  Greene  (Iowa)  518;  State  v.  McAllister,  24  Me.  139. 

isi  Crawford  v.  Planters'  &  M.  Bank,  6  Ala.  289;  Gordon  v.  Mont- 
gomery, 19  Ind.  110;  Bank  of  Com.  v.  Spilman,  3  Dana  (Ky.)  150; 
Utica  Bank  v.  Smedes,  3  Cow.  (N.  Y.)  662,  684  (semble) ;  Smith  v. 
Strong,  2  Hill  (N.  Y.)  241  (semble);  Newberry  Bank  v.  Greenville  &  C. 
R.  Co.,  9  Rich.  Law  (S.  C.)  495;  Shaw  v.  State,  3  Sneed  (Tenn.)  86; 
Hays  v.  Northwestern  Bank,  9  Grat.  (Va.)  127.  And  see  Jones  v.  Fales, 


§   IQOb  DOMESTIC   GOVERNMENT.  401 

acts  incorporating  railroad  companies152  are  regarded  as  pub- 
lic by  some  courts,  and  are  therefore  judicially  noticed. 

If  the  legislature  declares  that  the  act  shall  be  deemed  a  pub- 
lic one,  though  it  is  otherwise  not  so,  the  courts  will  take  ju- 
dicial notice  of  it  ;153  and  of  course  the  courts  will  comply  with 
a  statutory  direction  that  all  private  acts  shall  be  judicially 
noticed  without  proof.154  This  rule,  though  prescribed  by  a 
state  legislature,  governs  federal  courts  sitting  in  that  state.155 

In  closing  the  discussion  of  public  and  private  acts,  it  may 
be  said  that  the  disposition  in  America  has  been,  on  the 
whole,  to  enlarge  the  limits  of  public  acts,  and  to  bring  within 
the  definition  all  enactments  of  a  general  character  or  which 
in  any  way  affect  the  community  at  large.156 

4  Mass.  245,  252.  Contra,  as  to  private  banking  corporations,  Working- 
men's  Bank  v.  Converse,  33  La.  Ann.  963;  First  Nat.  Bank  v.  Gruber, 
87  Pa.  468,  30  A.  R.  378.  The  statutes  authorize  bank  charters  to  be 
judicially  noticed  in  some  states.  Davis  v.  Fulton  Bank,  31  Ga.  69; 
Buell  v.  Warner,  33  Vt.  570,  578. 

162  Western  &  A.  R.  Co.  v.  Roberson,  61  Fed.  592;  Wright  v.  Hawkins, 
28  Tex.  452,  471;  Hart  v.  Baltimore  &  O.  R.  Co.,  6  W.  Va.  336.  Contra, 
Perry  v.  New  Orleans,  M.  &  C.  R.  Co.,  55  Ala.  413,  28  A.  R.  740,  750; 
Ohio  &  I.  R.  Co.  v.  Ridge,  5  Blackf.  (Ind.)  78;  Atchison,  T.  &  S.  F.  R. 
Co.  v.  Blackshire,  10  Kan.  477.  In  some  states  it  is  provided  by  stat- 
ute, either  directly  or  indirectly,  that  railroad  charters  may  be  judi- 
cially noticed.  Hall  v.  Brown,  58  N.  H.  93. 

i53Hammett  v.  Little  Rock  &  N.  R.  Co.,  20  Ark.  204,  208;  Cincinnati, 
H.  &  I.  R.  Co.  v.  Clifford,  113  Ind.  460;  Bowie  v.  Kansas  City,  51  Mo. 
454;  Storrie  v.  Cortgs,- 90  Tex.  283,  35  L.  R.  A.  666;  Clark  v.  Janesville, 
10  Wis.  135,  182.  And  see  notes  150-152,  supra.  See,  however,  Cox  v. 
St.  Louis,  11  Mo.  431,  432;  Pettit  v.  May,  34  Wis.  666,  674. 

154  People  v.  Hagar,  52  Cal.  171;  Collier  v.  Baptist  Education  Soc.,  8 
B.  Mon.  (Ky.)  68;  Bixler's  Adm'x  v.  Parker,  3  Bush  (Ky.)  166;  Beau- 
mont v.  Mountain,  10  Bing.  404. 

«B  Beaty  v.  Knowler's  Lessee,  4  Pet.  (U.  S.)  152;  Junction  R.  Co.  v. 
Ashland  Bank,  12  Wall.  (U.  S.)  226;  Case  v.  Kelly,  133  U.  S.  21;  Unity 
v.  Burrage,  103  U.  S.  447;  Covington  Drawbridge  Co.  v.  Shepherd,  20 
How.  (U.  S.)  227. 

"a  Unity  v.  Burrage,  103  U.  S.  447,  455. 

Hammon,  Ev. — 26. 


402  LAW  OF   EVIDENCE. 

(c)  Administrative  rules.    Administrative  rules  and  regula- 
tions, unless  prescribed  by  high  officials,  are  not  taken  notice 
of  by  the  courts  without  evidence.157    Thus,  the  federal  courts 
will  not  take  official  notice  of  the  rules  of  the  board  of  super- 
vising inspectors  of  steam  vessels.158     However,  if  congress 
expressly  intrusts  to  either  of  the  principal  departments  of 
the  government  power  to  prescribe  rules  and  regulations  for 
the  transaction  of  business  in  which  the  public  is  interested, 
and  in  respect  of  which  the  public  has  a  right  to  participate, 
and    by    which    it    is    to    be    controlled,    the    rules    and    regula- 
tions  prescribed  in  pursuance   of  such   authority  become  a 
mass  of  that  body  of  public  records  of  which  the  courts  take 
judicial  notice.159    And  certain  other  rules  and  regulations  pre- 
scribed by  high  officials  under  authority  are  also  noticed  ju- 
dicially.160 

(d)  Municipal  resolutions  and  ordinances.    The  ordinances 
and  resolutions  of  municipal  boards  and  councils  are  not  no- 
ticed judicially,161  except  by  courts  of  the  municipality,162  'or 
on  appeal  from  such  courts.163 

i5THensley  v.  Tarpey,  7  Cal.  288;  Com.  v.  Crane,  158  Mass.  218; 
Palmer  v.  Aldridge,  16  Barb.  (N.  Y.)  131. 

iss  The  E.  A.  Packer,  140  U.  S.  360,  367;  The  Clara,  14  U.  S.  App.  346, 
350,  5  C.  C.  A.  390. 

159  Caha  v.  U.  S.,  152  U.  S.  211. 

160  Smith  v.  Shakopee,  103  Fed.  240,  44  C.  C.  A.  1;  Dominici  v.  U.  S., 
72  Fed.  46;  Low  v.  Hanson,  72  Me.  104;  Campbell  v.  Wood,  116  Mo.  196; 
U.  S.  v.  Williams,  6  Mont.  379. 

lei  Case  v.  Mobile,  30  Ala.  538;  Furhman  v.  Huntsville,  54  Ala.  263; 
Lucas  v.  San  Francisco,  7  Cal.  463,  474;  Green  v.  Indianapolis,  22  Ind. 
192;  Indianapolis  &  C.  R.  Co.  v.  Caldwell,  9  Ind.  397;  Garvin  v.  Wells,  8 
Iowa,  286;  Lucker  v.  Com.,  4  Bush  (Ky.)  440;  New  Orleans  v.  Labatt, 
33  La.  Ann.  107;  Shanfelter  v.  Baltimore,  80  Md.  483,  27  L.  R.  A.  648; 
Mooney  v.  Kennett,  19  Mo.  551,  61  A.  D.  576;  Porter  v.  Waring,  69  N. 
Y.  250;  Wilson  v.  State,  16  Tex.  App.  497;  Stittgen  v.  Rundle,  99  Wis. 
78. 

Moreover,  it  has  been  held  that  a  statutory  provision  that  the  ordi- 
nances of  municipal  corporations  shall  be  received  in  evidence  in 


g    lOOf  DOMESTIC    GOVERNMENT.  403 

(e)  Common  law.     The  courts  take  judicial  notice  of  the 
common  law,  as  distinguished  from  the  law  established  by 
constitution  and  statute.     Accordingly,  judicial  cognizance  is 
taken  of  the  rules  of  the  common  law  in  the  strict  sense  of 
the  term,184  and  of  the  rules  of  equity  law  ;185  the  rules  of  ad- 
miralty166  and   ecclesiastical   law;167   and   such   customs   and 
usages  as  have  become  a  part  of  the  common  law.168    And  this 
rule  applies  to  federal  as  well  as  to  state  courts.169 

(f)  Customs  and  usages.    Judicial  notice  is  taken  of  those 
customs  and  usages  which  have  become  a  part  of  the  common 
law,  as  we  have  just  seen.    An  important  illustration  of  this 
is  found  in  the  law  merchant.    This  consists  of  judicially  recog- 
nized customs  and  usages  of  merchants,  mainly  with  refer- 
all   courts  without   further  proof   does  not  enable   the  court   to   take 
judicial  notice  of  a  particular  ordinance  unless  it  is  produced  on  the 
trial.     Winona  v.  Burke,  23  Minn.  254;   Cox  v.  St.  Louis,  11  Mo.  431. 
And  see  Pettit  v.  May,  34  Wis.  666,  674. 

IBS  State  v.  Leiber,  11  Iowa,  407;  Downing  v.  Miltonvale,  36  Kan.  740; 
Anderson  v.  O'Donnell,  29  S.  C.  355,  13  A.  S.  R.  728.  In  Minnesota,  it 
seems,  even  the  municipal  courts  do  not  take  notice  of  the  ordinances 
of  their  respective  municipalities.  Winona  v.  Burke,  23  Minn.  254. 

IBS  See  §  132,  infra. 

IB*  St.  Louis  &  S.  F.  R.  Co.  v.  Weaver,  35  Kan.  412,  57  A.  R.  176; 
Owen  v.  Boyle,  15  Me.  147,  32  A.  D.  143;  Wilson  v.  Bumstead,  12  Neb. 
1,  4;  Swain  v.  Comstock,  18  Wis.  463. 

icBMaberley  v.  Robins,  5  Taunt.  625;  Sims  v.  Marryat,  17  Q.  B.  281, 
292;  Doe  d.  Williams  y.  Lloyd,  1  Man.  &  G.  671,  685;  Neeves  v.  Burrage, 
14  Q.  B.  504;  Westoby  v.  Day,  2  El.  &  Bl.  605,  624. 

186  Chandler  v.  Grieves,  2  H.  Bl.  606,  note.    And  see  The  Scotia,  14 
Wall.   (U.  S.)   170. 

187  Sims  v.  Marryat,  17  Q.  B.  281,  292.    It  is  otherwise  in  the  United 
States   as   to   ecclesiastical    law.    Youngs    v.   Ransom,    31   Barb.    (N. 
Y.)  49. 

i«8Munn  v.  Burch,  25  111.  35;  Power  v.  Bowdle,  3  N.  D.  107,  44  A.  S. 
R.  511;  Isaacs  v.  Barber,  10  Wash.  124,  128,  45  A.  S.  R.  772,  775.  See 
S  100 (f),  infra. 

189  Pennington  v.  Gibson,  16  How.  (U.  S.)  65,  81;  Hinde  v.  Vattier's 
Lessee,  5  Pet.  (U.  S.)  398. 


404  LAW   OF   EVIDENCE.  §    IQOf 

ence  to  negotiable  instruments.170  Banking  customs  and  usages, 
and  various  other  established  customs  and  usages  of  merchants, 
are  also  noticed  by  the  courts  without  evidence.171  And  the 
same  is  true,  it  seems,  of  marine  customs,172  of  "the  law  of  the 
road ; '  '173  of  the  usual  practice  and  course  of  conveyancing  ;174 
and  of  the  public  fasts,  festivals,  and  holidays.175 

Strictly  speaking,  a  custom  or  usage,  to  be  noticed  judicially, 
must  be  general  and  of  such  long  standing  as  to  have  become  a 
part  of  the  law  itself;176  and,  as  a  rule,  customs  that  are  lim- 
ited to  a  particular  locality,  or  to  a  special  class  of  people  or 
a  special  business,  are  not  judicially  noticed,  and  must  there- 
fore be  established  by  evidence.177  However,  many  usages  and 

170  Ereskine  v.  Murray,  2  Ld.  Raym.  1542;   Edie  v.  East  India  Co.,  2 
Burrow,  1216,  1226,  1228;   Jewell  v.  Center,  25  Ala.  498;   Reed  v.  Wil- 
son, 41  N.  J.  Law,  29;  Fleming  v.  McClure,  1  Brev.  (S.  C.)  428,  2  A.  D. 
671. 

171  Ford  v.  Hopkins,  1  Salk.  283;  Cameron  v.  Blackman,  39  Mich.  108; 
Watt  v.  Hoch,  25  Pa.  411.     Banking  customs  and  usages,  see  §  121, 
infra.     Railroad  customs  and  usages,  see  §  119,  infra. 

iT2The  Scotia,  14  Wall.  (U.  S.)  170.  And  see  Chandler  v.  Grieves, 
2  H.  Bl.  606,  note;  Liverpool  &  G.  W.  Steam  Co.  v.  Phenix  Ins.  Co.,  129 
U.  S.  397. 

Judicial  notice  is  taken  that  the  books  of  general  record  known  as 
"The  American  Lloyds,"  "The  Green  Book,"  and  "The  Record  Book" 
are  referred  to  by  business  men  for  the  purpose  of  ascertaining 
the  condition,  capacity,  age,  and  value  of  ships.  Slocovich  v.  Orient 
M.  Ins.  Co.,  108  N.  Y.  56. 

ITS  Turley  v.  Thomas,  8  Car.  &  P.  103;  Leame  v.  Bray,  3  East,  593. 

1743  Sugden,  Vend.  &  Pur.  28;  Willoughby  v.  Willoughby,  1  Term 
R.  763,  771;  Rowe  v.  Grenfel,  Ryan  &  M.  396,  398. 

175  Harvy  v.  Broad,  2  Salk.  626;  Sasscer  v.  Farmers'  Bank,  4  Md.  409; 
Aron  v.  Wausau,  98  Wis.  592,  40  L.  R.  A.  733. 

176  City  Elec.  St.  R.  Co.  v.  First  Nat.  Exch.  Bank,  62  Ark.  33,  54  A. 
S.  R.  282.     Customs  must  be  proved  till  they  come,  by  degrees,  to  be 
judicially  noticed.     Ex  parte  Powell,  1  Ch.  Div.  501,  507. 

177  Argyle  v.  Hunt,  1  Strange,  187;  Goldsmith  v.  Sawyer,  46  Cal.  209; 
Turner  v.  Fish,  28  Miss.  306;  Power  v.  Bowdle,  3  N.  D.  107,  44  A.  S.  R. 
511;  Lewis  v.  McClure,  8  Or.  273;  Horn  v.  Chicago  &  N.  W.  R.  Co.,  38 
Wis.  463.    Contra,  Watt  v.  Hoch,  25  Pa.  411  (semble). 


§    IQOf  DOMESTIC    GOVERNMENT.  405 

customs  that  are  not  such  in  the  strict  sense  of  the  words  will 
often  be  noticed  judicially  because  of  their  notoriety.178  Thus, 
some  usages  relating  to  mines  and  mining  are  judicially  no- 
ticed,179 although  judicial  cognizance  is  not  taken  of  those 
voluntary  regulations  peculiar  to  mining  camps  and  known 
as  "miners'  laws."180  So  judicial  notice  is  taken  of  the  mod- 
ern methods  of  carrying  on  trade  as  compared  with  those  for- 
merly existing;181  of  the  nature  of  commercial  agencies  and 
the  conduct  of  their  business  ;182  of  the  way  in  which  insurance 
is  usually  effected,183  and  of  whether  a  vacancy  in  the  occupa- 
tion of  a  building  increases  the  risk  of  fire;184  of  the  storing 
of  wheat  in  mass  with  other  wheat  of  the  same  grade  and 
quality  in  general  commercial  elevators;186  and  of  the  nature 
and  common  methods  of  the  business  of  conducting  lotteries.186 

ITS  Fox  v.  Hale  &  N.  S.  Min.  Co.,  108  Cal.  369;  State  v.  Chingren,  105 
Iowa,  169.  Customs  and  usages  as  to  banks  and  banking,  see  §  121, 
infra;  as  to  railroads,  see  §  119,  infra. 

It  is  judicially  known  that  real  property  is  customarily  assessed  for 
general  taxation  at  less  than  its  actual  value.  Railroad  &  T.  Cos.  v. 
Board  of  Equalizers,  85  Fed.  302,  308. 

The  custom  of  the  federal  government  with  respect  to  allowing  the 
unsurveyed  public  lands  to  be  used  for  pasturage  is  noticed  judicially. 
Mathews  v.  Great  Northern  R.  Co.,  7  N.  D.  81. . 

iToRowe  v.  Grenfel,  Ryan  &  M.  396,  398;  Clifton  Iron  Co.  v.  Dye,  87 
Ala.  468;  Adams  Min.  Co.  v.  Senter,  26  Mich.  73;  Isaacs  v.  Barber,  10 
Wash.  124,  45  A.  S.  R.  772. 

iso  Sullivan  v.  Hense,  2  Colo.  424. 

isi  Gregory  v.  Wendell,  39  Mich.  337,  33  A.  R.  390,  392;  Wiggins 
Ferry  Co.  v.  Chicago  &  A.  R.  Co.,  5  Mo.  App.  347. 

isz  Holmes  v.  Harrington,  20  Mo.  App.  661;  Eaton,  Cole  &  Burnham 
Co.  v.  Avery,  83  N.  Y.  31. 

IBS  North  American  Fire  Ins.  Co.  v.  Throop,  22  Mich.  146,  7  A.  R.  638, 
646. 

is*  white  v.  Phoenix  Ins.  Co.,  83  Me.  279;  Luce  v.  Dorchester  Mut. 
Fire  Ins.  Co.,  105  Mass.  297,  7  A.  R.  522. 

"6  Davis  v.  Kobe,  36  Minn.  214   1  A.  S.  R.  663. 

isosaloman  v.  State,  28  Ala.  83;  Lohman  v.  State,  81  Ind.  15. 


406  LAW  OF   EVIDENCE.  §   101  a 

§  101.    Miscellaneous  matters. 

(a)  Currency.  The  court  will  take  judicial  notice  of  the 
current  coins  of  the  country;187  and  they  assume  knowledge 
also  of  the  character  of  the  existing  circulating  medium,  and 
the  popular  language  in  reference  to  it.188  The  character  of 
the  circulating  medium  of  the  state  at  a  given  time  in  the  past 
will  also  be  judicially  noticed  as  a  matter  of  history  or  of 
statute;189  but  the  courts  will  not  notice  the  current  value  of 
the  currency  at  any  given  time,190  except  in  a  general  way,191 
though  they  will  take  cognizance  that  bills  which  are  a  part  of 
the  currency  of  the  United  States  are  prima  facie  of  a  com- 
mercial value  equal  to  that  imported  by  their  face.192  The  finan- 
cial history  of  the  country  will  be  officially  noticed  by  the 
courts;193  and  the  character  and  history  of  the  Confederate 
currency  is  also  noticed  judicially.194  The  value  of  foreign 
currency  is  not  noticed  judicially,195  except  as  fixed  by  domes- 
tic statute.196 

IST  u.  S.  v.  Burns,  5  McLean,  23,  Fed.  Gas.  No.  14,691. 

iss  u.  S.  v.  4000  American  Gold  Coin,  Woolw.  217,  Fed.  Gas.  No.  14,- 
439;  Hart  v.  State,  55  Ind.  599;  Jones  v.  Overstreet,  4  T.  B.  Mon.  (Ky.) 
547,  550;  Johnston  v.  Hedden,  2  Johns.  Cas.  (N.  Y.)  274;  Shaw  v.  State, 
3  Sneed  (Tenn.)  86. 

i89Lampton  v.  Haggard,  3  T.  B.  Mon.  (Ky.)  149.  As  to  Confederate 
currency,  see  note  194,  infra. 

190  Modawell  v.  Holmes,  40  Ala.  391;  Feemster  v.  Ringo,  5  T.  B.  Mon. 
(Ky.)  336. 

191  Bryant  v.  Foot,  L.  R.  3  Q.  B.  497,  37  L.  J.  Q.  B.  217. 

192  Gady  v.  State,  83  Ala.  51. 

193  Ashley's  Adm'x  v.  Martin,  50  Ala.  537. 

194  Keppel's  Adm'rs  v.  Petersberg  R.  Co.,  Chase,  167,  Fed.  Cas.  No. 
7,722;   Buford  v.  Tucker,  44  Ala.  89;  Lumpkin  v.  Murrell,  46  Tex.  51; 
Simmons  v.  Trumbo,  9  W.  Va.  358.     See,  however,  Modawell  v.  Holmes, 
40  Ala.  391. 

195  Kermott  v.  Ayer,  11  Mich.  181.     See,  however,  Johnston  v.  Hedden, 
2  Johns.  Cas.  (N.  Y.)  274. 

196  u.  S.  v.  Burns,  5  McLean,  23,  Fed.  Cas.  No.  14,691. 


§  lOld  DOMESTIC   GOVERNMENT.  407 

The  courts  will  not  take  judicial  notice  of  current  rates  of 
exchange  between  commercial  points.197  Nor  are  foreign  rates 
of  interest  known,  in  the  absence  of  evidence.198 

(b)  Post.     Various  matters  relating  to  the  post  are  within 
the  judicial  knowledge  of  the  court.199    Thus,  the  location  of 
the  various  post  offices  in  the  jurisdiction  wherein  the  court  sits 
will  be  judicially  noticed.200     So,  the  court  will  take  judicial 
notice  of  the  general  certainty  that  matter  carried  through 
the  mails  will,  in  spite  of  much  imperfection  of  the  address, 
reach  its  proper  destination  ;201  and  also  in  a  general  way  of  the 
ordinary  course  of  the  mails  as  to  time.202 

(c)  Census.     The  courts  take  judicial  notice  of  the  facts 
shown  by  the. official  census,  state  or  federal.     Thus,  the  popu- 
lation of  the  country,  and  its  various  states  and  cities,  as  shown 
by  the  official  census,  is  noticed  judicially  ;203  and  also  the  time 
ordinarily  required  to  complete  the  enumeration  of  a  state.204 

(d)  Elections.    Judicial  notice  is  taken  of  the  days  of  gen- 

197  Lowe  v.  Bliss,  24  111.  168,  76  A.  D.  742. 

i»s  Insurance  Co.  v.  Forcheimer,  86  Ala.  541;  Holley  v.  Holley,  Litt. 
Sel.  Cas.  505,  12  A.  D.  342;  Kermott  v.  Ayer,  11  Mich.  181;  Millard  v. 
Truax,  73  Mich.  381;  Ramsay  v.  McCauley,  2  Tex.  189.  This  is  an  illus- 
tration of  the  rule  that  judicial  notice  is  not  taken  of  foreign  laws. 
See  §  105,  infra. 

i»»  Courts  are  bound  to  take  judicial  notice  of  the  course  of  post,  of 
the  stamps  of  post  offices  upon  letters,  and  of  the  character  of  a  post 
card  as  to  visibility  of  the  message.  Per  Palles,  C.  B.,  in  Robinson  v. 
Jones,  4  L.  R.  Ir.  391,  395. 

200  Smitha  v.  Flournoy's  Adm'r,  47  Ala.  345. 

201  Gamble  v.  Central  R.  &  B.  Co.,  80  Ga.  595,  12  A.  S.  R.  276,  280. 

202  National  Masonic  Ace.  Ass'n  v.  Seed,  95  111.  App.  43. 

208  People  v.  Williams,  64  Cal.  87 ;  Worcester  Nat.  Bank  v.  Cheney,  94 
111.  430;  Denny  v.  State,  144  Ind.  503,  31  L.  R.  A.  726;  Parker  v.  State, 
133  Ind.  178,  18  L.  R.  A.  567;  Bennett  v.  Marion,  106  Iowa,  628;  State 
T.  Braskamp,  87  Iowa,  588,  592;  State  v.  Marion  County  Court,  128 
Mo.  427;  State  v.  Jackson  County  Court,  89  Mo.  237;  Kokes  v.  State, 
55  Neb.  691;  State  v.  Cunningham,  81  Wis.  440,  15  L.  R.  A.  561. 

204  People  v.  Rice,  135  N.  Y.  473,  16  L.  R.  A.  836. 


408  LAW  OF   EVIDENCE.  §   102 

eral  political  elections,205  and  of  some  other  statutory  elec- 
tions ;20G  and  also,  under  some  circumstances,  of  the  offices  then 
to  be  filled,207  of  the  tickets  there  presented,208  and  of  the 
result  of  the  canvass.209  Courts  may  notice  ex  officio  the  former 
qualifications  of  voters  as  a  matter  of  legal  history  ;210  and  the 
powers  of  municipal  corporations  with  reference  to  electing 
officers  are  judicially  noticed;211  also  that  primary  elections 
have  grown  to  be  an  essential  part  of  our  political  system.212 

B.  FOREIGN  GOVERNMENT. 

§  102.    Existence,  title,  and  extent. 

Every  sovereign  state  recognizes,  and  its  tribunals  therefore 
take  judicial  notice  of,  the  existence  and  titles  of  all  the  other 
sovereign  powers  in  the  civilized  world,213  and  their  territorial 
extent.214  Thus,  it  was  judicially  noticed,  in  1884,  that  the 
island  of  Cuba  was  a  dependency  of  the  kingdom  of  Spain;215 

zosurmston  v.  State,  73  Ind.  175;  State  v.  Minnick,  15  Iowa,  123; 
Ellis  v.  Reddin,  12  Kan.  306;  Jackson  County  v.  Arnold,  135  Mo.  207; 
Kokes  v.  State,  55  Neb.  691. 

2oewampler  v.  State,  148  Ind.  557,  38  L.  R.  A.  829;  In  re  Denny,  156 
Ind.  104,  51  L.  R.  A.  722;  Prince  v.  Crocker,  166  Mass.  347,  32  L.  R.  A. 
610. 

207  u.  S.  v.  Morrissey,  32  Fed.  147;   State  v.  Minnick,  15  Iowa,  123; 
Ellis  v.  Reddin,  12  Kan.  306. 

208  State  v.  Downs,  148  Ind.  324. 

209  in  re  Denny,  156  Ind.  104,  51  L.  R.  A.  722;  Prince  v.  Crocker,  166 
Mass.  347,  32  L.  R.  A.  610;   Kokes  v.  State,  55  Neb.   691;   Thomas  v. 
Com.,  90  Va.  92. 

210  Rasmussen  v.  Baker,  7  Wyo.  117,  38  L.  R.  A.  773. 

211  Gallagher  v.  State,  10  Tex.  App.  469. 

212  State  v.  Hirsch,  125  Ind.  207,  9  L.  R.  A.  170. 

213  U.  S.  v.  Wagner,  2  Ch.  App.  582,  585;  Jones  v.  U.  S.,  137  U.  S.  202, 
214;  The  Santissima  Trinidad,  7  Wheat.   (U.  S.)   283;  Lazier  v.  West- 
cott,  26  N.  Y.  146,  82  A.  D.  404. 

214  Foster  v.  Globe  Venture  Syndicate,  69  Law  J.  Ch.  G75,  [1900]   1 
€h.  811,  82  Law  T.  (N.  S.)  253;  Gilbert  v.  Moline  W.  P.  &  Mfg.  Co.,  19 
Jowa,   319. 


g    103  FOREIGN  GOVERNMENT.  409 

and  the  organization  of  Canada  as  part  of  the  British  Empire 
has  also  been  noticed  judicially.210  It  should  be  observed  that 
the  judiciary  follows  the  executive  in  this  matter,  and  cannot 
take  notice  of  the  existence  of  a  newly  formed  government 
which  the  executive  has  not  recognized,  nor  refuse  to  take  no- 
tice of  a  government  which  has  been  recognized  by  the  execu- 
tive.217 A  common  illustration  of  this  occurs  where  a  part  of  a 
foreign  country  separates  itself  from  the  rest,  and  establishes 
for  itself  an  independent  government.  The  courts  of  no  other 
nation  can  recognize  the  new  government  until  it  has  been 
acknowledged  by  the  sovereign  power  under  which  the  tribunal 
exists.218  And  the  same  rule  will  be  applied  in  taking  notice 
of  the  territorial  extent  of  a  recognized  state.219 

§  103.    Flag  and  seal. 

The  usual  symbols  of  nationality  and  sovereignty  are  the 
national  flag  and  seal.  Every  sovereign  recognizes,  therefore. 

2i5  People  v.  D'Argencour,  32  Hun  (N.  Y.)  178. 

2i«  Ex  parte  Lane,  6  Fed.  34;  Calhoun  v.  Ross,  60  111.  App.  309; 
Lazier  v.  Westcott,  26  N.  Y.  146,  82  A.  D.  404. 

217  Mighell  v.  Sultan  of  Johore  [1894]  1  Q.  B.  149,  9  Rep.  447,  63  Law 
J.  Q.  B.  593,  70  Law  T.  (N.  S.)  64;  Yrisarri  v.  Clement,  2  Car.  &  P.  223; 
Berne  v.  Bank  of  England,  9  Ves.  347;   Jones  v.  U.  S.,  137  U.  S.  202, 
212,  214;  U.  S.  v.  Palmer,  3  Wheat.  (U.  S.)  610;  Underbill  v.  Hernandez, 
168  U.  S.  250.     See  Bolder  v.  Bank  of  England,  10  Ves.  352. 

218  Taylor  v.  Barclay/ 2  Sim.  213,  Thayer,  Cas.  Ev.  23;  Thompson  v. 
Powles,  2  Sim.  194;   Rose  v.  Himely,  4  Cranch   (U.  S.)   241,  272;   The 
Nueva  Anna,  6  Wheat.  (U.  S.)  193;  Gelston  v.  Hoyt,  3  Wheat.   (U.  S.) 
246;  Kennett  v.  Chambers,  14  How.  (U.  S.)  38. 

If,  however,  the  domestic  government,  while  remaining  neutral,  rec- 
ognizes the  existence  of  civil  war  in  a  foreign  state,  the  domestic 
courts  cannot  consider  as  criminal  individual  acts  of  hostility  author- 
ized by  war  and  directed  against  the  old  government  by  the  new.  U.  S. 
v.  Palmer,  3  Wheat.  (U.  S.)  610. 

219  Foster  v.  Globe  Venture  Syndicate,  69  Law  J.  Ch.  375,   [1900]  1 
Ch.  811,  82  Law  T.   (N.  S.)  253;  Williams  v.  Suffolk  Ins.  Co.,  13  Pet. 
(U.  S.)  415. 


410  LAW   OF   EVIDENCE.  §   104 

and  its  tribunals  accordingly  take  official  notice  of,  the  flags 
and  seals  of  all  the  other  sovereign  powers  in  the  civilized 
world.220  This  rule  is  subject  to  the  qualification  noted  in 
the  preceding  section  as  to  the  judiciary  following  the  execu- 
tive. If,  therefore,  a  foreign  state  has  not  been  recognized 
by  the  sovereign  power  under  which  the  tribunal  is  established, 
its  flag  and  seal  are  not  judicially  known  to  the  domestic 
courts.221 

§  104.    Officers  and  courts. 

As  a  rule,  judicial  notice  is  not  assumed  of  the  officers  of  a 
foreign  government,  unless  they  have  been  recognized  in  their 
official  capacity  by  the  executive  branch  of  the  domestic  gov- 
ernment; and  a  sister  state  is  a  foreign  government,  within 
the  meaning  of  this  rule.222  As  just  intimated,  the  rule  seems 
to  be  otherwise  in  reference  to  foreign  ministers  accredited  to 
the  domestic  government  and  recognized  by  the  executive.223 
And  an  exception  to  the  rule  exists  in  the  case  of  notaries 
public,  so  far  as  concerns  their  powers  and  duties  under  the 
law  merchant;  that  is  to  say,  so  far  as  concerns  the  protest 
by  them  of  foreign  bills.  Accordingly,  if  a  foreign  certificate 
of  protest  is  authenticated  by  the  notary's  official  seal,  it  is 
prima  facie  evidence  of  the  facts  recited  in  it,  and  is  received 

220  i  Greenl.  Ev.  §  4;  Anon.,  9  Mod.  66;  U.  S.  v.  Johns,  4  Ball.  (U.  S.) 
412;  Griswold  v.  Pitcairn,  2  Conn.  85;  Simms  v.  Southern  Exp.  Co.,  3-8 
Ga.  1*29;  Robinson  v.  Gilman,  20  Me.  299;  Lincoln  v.  Battelle,  6  Wend. 
(U.  S.)  475;  Coit  v.  Millikin,  1  Denio  (N.  Y.)   376 

221  The  Estrella,  4  Wheat.  (U.  S.)  298;  U.  S.  v.  Hutchings,  2  Wheeler, 
Cr.  Gas.  (U.  S.)  543;  The  Nueva  Anna,  6  Wheat.  (U.  S.)  193;  U.  S.  v. 
Palmer,  3  Wheat.  (U.  S.)  610. 

222  Fellows  v.  Menasha,  11  Wis.  558.     And  see  In  re  Keeler,  Hemp. 
306,  Fed.  Cas.  No.  7,637.     See,  however,  §  105 (b),  infra. 

223Walden  v.  Canfleld,  2  Rob.  ('La.)  466.  And  see  In  re  Baiz,  135 
U.  S.  403. 


§   105a  FOREIGN  GOVERNMENT.  411 

in  evidence  by  the  courts  of  all  civilized  countries  without  fur- 
ther proof.224 

Judicial  notice  is  taken  that  courts  are  established  in  the 
individual  United  States  and  in  Canada  for  the  administration 
of  justice;225  and  foreign  admiralty  and  maritime  courts,  be- 
ing courts  of  the  civilized  world,  and  of  co-ordinate  jurisdic- 
tion, are  judicially  recognized  everywhere  by  common  consent 
and  general  usage.  Their  sentences  are  conclusive  and  their 
seals  need  not  be  proved.226  This  last  rule  does  not  apply  to 
other  courts  of  foreign  countries,  and  accordingly  judicial 
notice  is  not  taken  of  their  seals  by  the  domestic  courts.227 

§  105.    Laws. 

(a)  General  rules.  The  laws  of  a  foreign  state,  whether  con- 
stitutional, statutory,  or  customary,  are  regarded  as  matter  of 
fact.  Their  provisions  are  enforced  by  domestic  tribunals,  not 
because  they  are  laws  in  the  strict  sense,  but  because  transac- 
tions occurring  where  they  obtain  are  presumed  to  have  oc- 

224  Anonymous,  12  Mod.  345;   Chesmer  v.  Noyes,   4  Camp.  129,  130 

(semble);   Pierce  v.  Indseth,  106  U.  S.  546;   Carter  v.  Burley,  9  N.  H. 

•558;  Delafleld  v.  Hand,  3  Johns.  (N.  Y.)  310,  314;  Second  Nat.  Bank  v. 

Chancellor,  9  W.  Va.  69,  70.     See  Chanoine  v.  Fowler,  3  Wend.  (N.  Y.) 

173. 

Some  other  acts  of  foreign  notaries  have  been  judicially  recog- 
nized in  the  domestic  courts.  Denmead  v.  Maack,  2  MacArthur  (D. 
C.)  475;  Las  Caygas  v.'Larionda's  Syndics,  4  Mart.  (La.)  283.  But 
the  domestic  courts  cannot  take  notice  ex  offlcio  of  whether  the  no- 
taries of  a  sister  state  have  power  to  take  affidavits.  Teutonia  Loan  & 
B.  Co.  v.  Turrell,  19  Ind.  App.  469,  65  A.  S.  R.  419. 

225Dozier  v.  Joyce,  8  Port.  (Ala.)  303;  Lazier  v.  Westcott,  26  N.  Y. 
146,  82  A.  D.  404.  And  see  §  105  (b),  infra. 

226  Green  v.  Waller,  2  Ld.  Raym.  891,  893;   Croudson  v.  Leonard,  4 
Cranch    (U.  S.)  434;  Rose  v.  Himely,  4  Cranch    (U.  S.)  241;  Thompson 
v.  Stewart,  3  Conn.  171,  8  A.  D.  168. 

227  Henry  v.  Adey,  3  East,  221;  Griswold  v.  Pitcairn,  2  Conn.  85,  90; 
Delafleld  v.  Hand,  3  Johns.  (N.  Y.)  310.     And  see  In  re  Keeler,  Hemp~ 
306,  Fed.  Cas.  No.  7,637. 


412  LAW   OF    EVIDENCE.  §   105a 

curred  with  reference  to  them.  Their  controlling  effect  is  like 
that  of  usages  or  general  customs.  Being  so  regarded  in  the 
domestic  tribunals,  they  are  not  noticed  judicially,  but  must 
be  established  by  evidence.228  A  sister  state  is  a  foreign  state, 
within  the  meaning  of  this  rule,229  in  the  absence  of  statute  to 

228  Fremoult  v.  Dedire,  1  P.  Wms.  429,  431;  Liverpool  &  G.  W.  S.  Co. 
v.  Phenix  Ins.  Co.,  129  U.  S.  397;  Dainese  v.  Hale,  91  U.  S.  13;  Strother 
v.  Lucas,  6  Pet.   (U.  S.)   763;  Malpica  v.  McKown,  1  La.  248,  20  A.  D. 
279;  Owen  v.  Boyle,  15  Me.  147,  32  A.  D.  143;  Charlotte  v.  Chouteau,  25 
Mo.  465;   Monroe  v.  Douglass,  5  N.  Y.  447;   State  v.  Looke,  7  Or.  54. 
And  see  cases  cited  in  note  198,  supra. 

The  rule  may  be  waived  by  the  parties  to  the  cause,  in  which  case 
the  court  may  take  notice  of  the  foreign  law.  Bock  v.  Lauman,  24  Pa. 
435. 

As  to  the  law  merchant,  see  §  lOOf,  supra,  and  as  to  international 
law,  see  §  106,  infra. 

229  ALABAMA:     Mobile  &  O.  R.  Co.  v.  Whitney,  39  Ala.  468. 
ARKANSAS  :     Cox  v.  Morrow,  14  Ark.  603. 

CALIFORNIA:  Wickersham  v.  Johnson,  104  Cal.  407,  43  A.  S.  R.  118; 
Cavender  v.  Guild,  4  Cal.  250. 

COLORADO:  Atchison,  T.  &  S.  F.  R.  Co.  v.  Betts,  10  Colo.  431;  Polk  v. 
Butterfleld,  9  Colo.  325. 

CONNECTICUT:  Hale  v.  New  Jersey  S.  N.  Co.,  15  Conn.  539,  39  A.  D. 
398;  Fish  v.  Smith,  73  Conn.  377,  84  A.  S.  R.  161. 

FLORIDA:     Summer  v.  Mitchell,  29  Fla.  179,  30  A.  S.  R.  106. 

GEORGIA:     Simms  v.  Southern  Exp.  Co.,  38  Ga.  129,  132. 

ILLINOIS:     Chumasero  v.  Gilbert,  24  111.  293. 

INDIANA:  Cincinnati,  H.  &  D.  R.  Co.  v.  McMullen,  117  Ind.  439,  10 
A.  S.  R.  67;  Billingsley  v.  Dean,  11  Ind.  331. 

IOWA:     Nesse  v.  Farmers'  Ins.  Co.,  55  Iowa,  604. 

KANSAS:  St.  Louis  &  S.  F.  R.  Co.  v.  Weaver,  35  Kan.  412,  57  A.  R. 
176,  178;  Shed  v.  Augustine,  14  Kan.  282. 

KENTUCKY:  McDaniel  v.  Wright,  7  J.  J.  Marsh.  475,  478;  Holley  v. 
Holley,  Litt.  Sel.  Cas.  505,  12  A.  D.  342. 

LOUISIANA:     Syme  v.  Stewart,  17  La.  Ann.  73. 

MAINE:     Owen  v.  Boyle,  15  Me.  147,  32  A.  D.  143. 

MARYLAND:     Baltimore  &  O.  R.  Co.  v.  Glenn,  28  Md.  287. 

MASSACHUSETTS:  Harvey  v.  Merrill,  150  Mass.  1,  15  A.  S.  R.  159; 
Portsmouth  Livery  Co.  v.  Watson,  10  Mass.  91,  92;  Hancock  Nat.  Bank 
v.  Ellis,  166  Mass.  414,  55  A.  S.  R.  414;  Kline  v.  Baker,  99  Mass.  253, 


§   105a  FOREIGN  GOVERNMENT.  413 

the  contrary.230  Consequently,  her  laws,  whatsoever  the  origin, 
must  be  proved  as  a  fact.  The  rule  applies  in  the  admiralty,  as 
in  other  courts.231 

254;  Chipman  v.  Peabody,  159  Mass.  420,  423,  38  A.  S.  R.  437,  439; 
Palfrey  v.  Portland,  S.  &  P.  R.  Co.,  4  Allen,  55,  56. 

MICHIGAN:     Chapman  v.  Colby,  47  Mich.  46. 

MINNESOTA:  Crandall  v.  Great  Northern  R.  Co.,  83  Minn.  190,  85  A. 
S.  R.  458;  Schultz  v.  Howard,  63  Minn.  196,  56  A.  S.  R.  470;  Myers  v. 
Chicago,  St.  P.,  M.  &  O.  R.  Co.,  69  Minn.  476,  65  A.  S.  R.  579;  Hoyt  v. 
McNeil,  13  Minn.  390  (Gil.  362). 

MISSOURI:     Conrad  v.  Fisher,  37  Mo.  App.  352,  8  L.  R.  A.  147. 

NEBRASKA:     Scroggin  v.  McClelland,  37  Neb.  644,  40  A.  S.  R.  520. 

NEW  JERSEY:  Campion  v.  Kille,  15  N.  J.  Eq.  476;  Condit  v.  Black- 
well,  19  N.  J.  Eq.  193,  196. 

NEW  YORK:  Hunt  v.  Johnson,  44  N.  Y.  27,  4  A.  R.  631;  Hosford  v. 
Nichols,  1  Paige,  220. 

NORTH  CAROLINA:  Hooper  v.  Moore,  50  N.  C.  (5  Jones,  Law)  130; 
Hilliard  v.  Outlaw,  92  N.  C.  266. 

OHIO:     Pel  ton  v.  Platner,  13  Ohio,  209,  42  A.  D.  197. 

PENNSYLVANIA:  Phillips  v.  Gregg,  10  Watts,  158,  36  A.  D.  158;  Siegel 
v.  Robinson,  56  Pa.  19,  93  A.  D.  775. 

SOUTH  DAKOTA:  Meuer  v.  Chicago,  M.  &  St.  P.  R.  Co.,  5  S.  D.  568, 
49  A.  S.  R.  898. 

TEXAS:  Anderson  v.  Anderson,  23  Tex.  639;  Bufford  v.  Holliman,  10 
Tex.  560,  60  A.  D.  223. 

VERMONT:  Murtey  v.  Allen,  71  Vt.  377,  76  A.  S.  R.  779;  Ward  v.  Mor- 
rison, 25  Vt.  593. 

VIRGINIA:     Warner  v.  Com.,  2  Va.  Gas.  95,  97. 

WEST  VIRGINIA:  Wilson  v.  Phoenix  Power  Mfg.  Co.,  40  W.  Va.  413, 
52  A.  S.  R.  890. 

WISCONSIN:  Walsh  v.  Dart,  12  Wis.  635;  Rape  v.  Heaton,  9  Wis. 
328,  76  A.  D.  269;  Continental  Nat.  Bank  v.  McGeoch,  73  Wis.  332. 

The  rule  stated  in  the  text  seems  no  longer  to  prevail  in  Louisiana 
so  far  as  the  common  law  of  a  sister  state  is  concerned,  but  statutes 
of  sister  states  are  not  judicially  noticed.  Rush  v.  Landers,  107  La. 
549,  57  L.  R.  A.  353. 

230  Hanley  v.  Donoghue,  116  U.  S.  1,  7;  Hale  v.  New  Jersey  S.  N.  Co., 
15  Conn.  539,  39  Am.  Dec.  398;   Cutler  v.  Wright,  22  N.  Y.  472,  474; 
Coffee  v.  Neely,  2  Heisk.  (Tenn.)  304;  Wilson  v.  Phoenix  Powder  Mfg. 
Co.,  40  W.  Va.  413,  52  A.  S.  R.  890. 

231  The  Prince  George,  4  Moore,  P.  C.  21;    The  Peerless,  Lush.  30; 


414  LAW  OF   EVIDENCE.  §   !Q5b 

(b)  Exceptions  and  qualifications.  The  rule  that  foreign 
law  is  not  noticed  judicially  is  well  settled,  but  it  has  many 
important  exceptions  and  qualifications,  and  these  will  now  be 
considered. 

While  the  domestic  courts  will  not  as  a  rule  take  judicial 
cognizance  of  the  laws  of  another  country,  yet  certain  pre- 
sumptions obtain  in  reference  to  the  nature  of  foreign  laws 
which  often  dispense  with  the  necessity  of  adducing  evidence 
of  them.  These  presumptions  are  considered  in  another 
connection.232  One  may  be  mentioned  here,  however:  While 
foreign  law  must  be  proved  as  matter  of  fact,  yet,  if  it  is  ascer- 
tained as  of  a  given  date  prior  to  the  transaction  in  suit,  it  is 
to  be  considered  as  remaining  the  same  unless  evidence  to  the 
contrary  is  adduced.233  And  a  decision  of  a  domestic  court 
denning  particular  rules  of  foreign  law  will  be  noticed  judicial- 
ly as  an  authority  when  the  same  rules  afterwards  come  into 
question  in  the  same  jurisdiction.234 

The  federal  courts,  as  we  have  seen,  take  cognizance  of  the 
laws  of  the  various  states  of  the  Union.  In  view  of  this,  it  has 

Lie  Louis,  2  Dod.  241;  The  Pawashick,  2  Low.  142,  Fed.  Gas.  No.  10,- 
851,  Thayer,  Cas.  Ev.  31;  The  Scotland,  105  U.  S.  24,  29;  Talbot  v.  See- 
man,  I  Cranch  (U.  S.)  1. 

232  See  §  54,  supra. 

233  Malpica  v.  McKown,  1  La.  248,  20  A.  D.  279 ;  Arayo  v.  Currel,  1 
La.  528,  20  A.  D.  286,  292;    Stokes  v.  Macken,  62  Barb.    (N.  Y.)   145; 
Meuer  v.  Chicago,  M.  &  St.  P.  R.  Co.,  11  S.  D.  94,  74  A.  S.  R.  774. 

If  proof  of  a  foreign  statute  is  given  from  a  publication  made  under 
the  authority  of  the  foreign  government  of  a  date  prior  to  the  transac- 
tion in  suit,  the  presumption  is  that  it  is  still  in  force  there,  in  the 
absence  of  evidence  that  it  has  been  modified  or  repealed.  Cochran  v. 
Ward,  5  Ind.  App.  89,  51  A.  S.  R.  229;  In  re  Huss,  126  N.  Y.  537,  12  L. 
R.  A.  620. 

234  The  Pawashick,  2  Lowell,  142,  Fed.  Cas.  No.  10,851,  Thayer,  Cas. 
Ev.  31;  Graham  v.  Williams,  21  La.  Ann.  594.     And  see  Dalrymple  v. 
Dalrymple,  2  Hagg,  Consist.  54,  81.     Contra.  Westlake,  Priv.  Int.  Law,  § 
413;  McCormick  v.  Garnett,  5  De  Gex,  M.  &  G.  278. 


g   105b  FOREIGN  GOVERNMENT.  415 

been  held  that  even  though  a  cause  be  instituted  in  a  state 
court,  yet,  if  it  is  of  such  a  nature  that  the  judgment  may  be 
reviewed  by  the  federal  supreme  court,  the  state  court  in  trying 
it  may  take  judicial  notice  of  the  laws  of  a  sister  state.  This 
question  usually  arises  under  that  part  of  the  constitution  of 
the  United  States  and  the  act  of  congress  which  require  full 
faith  and  credit  to  be  given  in  each  state  to  the  public  acts, 
records,  and  judicial  proceedings  of  every  'other  state,  when 
properly  authenticated.  Accordingly,  in  such  a  case  the  courts 
of  most  of  the  states  will  take  judicial  notice  of  the  local  laws 
of  the  state  from  which  the  record  comes,235  to  the  extent  of 
determining  whether  the  court  rendering  the  judgment  there 
had  jurisdiction  so  to  do.236 

In  extradition  proceedings  it  is  a  fundamental  question 
whether  the  alleged  fugitive  from  justice  is  charged  with  a 
crime  against  the  laws  of  the  demanding  state.  Involving,  as 
it  does,  not  only  the  liberty  of  the  citizen,  but  also  the  rights 
of  another  state,  it  has  been  thought  to  be  the  right,  if  not  the 
duty,  of  the  domestic  courts,  to  seek  the  highest  sources  of  in- 
formation at  their  command  to  ascertain  the  laws  of  the  de- 
manding state  relative  to  the  alleged  crime,  and  give  them 
force  and  effect,  without  regard  to  whether  they  are  formally 
proved.287 

235  Paine  v.  Schenectady  Ins.  Co.,  11  R.  I.  411.    Contra,  Hanley  v. 
Donoghue,  116  U.  S.  1,  Thayer,  Cas.  Ev.  26,  29;  Lloyd  v.  Matthews,  155 
U.  S.  222;   Sammis  v.  Wightman,  31  Fla.  10;   Rape  v.  Heaton,  9  Wis. 
328;  Osborn  v.  Blackburn,  78  Wis.  209,  23  A.  S.  R.  400. 

236  Rae  v.  Hulbert,  17  111.  572;  Butcher  v.  Brownsville  Bank,  2  Kan. 
70,  83  A.  D.  446;  Dodge  v.  Coffin,  15  Kan.  277;  Curtis  v.  Glbbs,  2  N.  J. 
Law,  290;  Ohio  v.  Hinchman,  27  Pa.  479;  Trowbridge  v.  Spinning,  23 
Wash.  48,  83  A.  S.  R.  806.     And  see  Coffee  v.  Neely,  2  Heisk.   (Tenn.) 
304;  Jarvis  v.  Robinson,  21  Wis.  530,  94  A.  D.  560,  561.     Cases  to  the 
contrary  will  be  found  in  the  preceding  note. 

237  Barranger  v.  Baum,  103  Ga.  465.    And  see  Ex  parte  Spears,  88 
Cal.  640,  22  A.  S.  R.  341. 


416  LAW   OF   EVIDENCE.  §   105b 

If  the  laws  of  the  forum  recognize  official  acts  done  in  pur- 
suance of  the  laws  of  a  foreign  state,  those  laws  may  be  judi- 
cially noticed  by  the  domestic  courts  in  passing  on  the  validity 
of  such  acts.  Thus,  the  lex  fori  often  provides  that  an  acknowl- 
edgment taken  in  another  state  in  conformity  with  the  laws 
thereof  shall  be  regarded  as  valid  by  the  domestic  courts.  In 
such  a  case,  unless  the  domestic  statute  otherwise  requires  it,23* 
no  certificate  of  the  character  of  the  foreign  officer  taking  the 
acknowledgment  is  necessary  to  give  force  to  his  act  in  the 
domestic  courts.239 

In  so  far  as  the  law  of  one  country  has  become  a  part  of  the 
law  of  another,  the  courts  of  the  latter  jurisdiction  will  take 
judicial  notice  of  it.  Thus,  if  'one  state  is  carved  out  of  an- 
other, so  much  of  the  laws  of  the  latter  as  were  in  existence 
and  applicable  to  the  new  state  at  the  time  of  the  division 
may  be  noticed  by  the  courts  of  the  new  state.240  The  same 
principle  applies  where  a  colony  separates  itself  from  the 
mother  country  and  erects  an  independent  government.  So 
much  of  the  laws  of  the  mother  country  as  were  in  exist- 
ence and  applicable  to  the  new  country  at  the  time  of  the  sepa- 
ration are  a  part  of  its  laws  and  may  be  judicially  noticed  by 
its  tribunals.241  And  the  same  principle  applies  where  terri- 

238  Fellows  v.  Menasha,  11  Wis.  558. 

239  Carpenter  v.   Dexter,   8  Wall.    (U.   S.)    513;   Morse  v.  Hewett,  28. 
Mich.  481;  Shotwell  v.  Harrison,  22  Mich.  410;  Den  d.  Saltar  v.  Apple- 
gate,  23  N.  J.  Law,  115. 

240  Crandall  v.  Sterling  G.  Min.  Co.,  1  Colo.  106;   Henthorn  v.  Shep- 
herd, 1  Blackf.   (Ind.)   157;  Holley  v.  Holley,  Litt.  Sel.  Cas.  505,  12  A. 
D.  342. 

241  Owen  v.  Boyle,  15  Me.  147,  32  A.  D.  143;    Stokes  v.  Macken,  62 
Barb.   (N.  Y.)   145. 

'Laws  enacted  by  the  mother  country  after  the  separation  do  not,  of 
course,  fall  within  the  operation  of  this  principle.  Liverpool  &  G.  W. 
Steam  Co.  v.  Phenix  Ins.  Co.,  129  U.  S.  397;  Spaulding  v.  Chicago  &  N. 
W.  Ry.  Co.,  30  Wis.  110,  11  A.  R.  550. 


§  105b  FOREIGN  GOVERNMENT.  417 

tory  is  ceded  by  one  state  to  another.242  So,  if  a  country,  now 
foreign,  once  formed  a  part  of  the  same  country  with  that  of 
the  forum, — as,  for  instance,  Texas  and  Mexico, — the  laws 
common  to  both  at  the  time  of  separation  do  not  require  proof 
in  either.243 

Some  facts  concerning  the  common  law  as  a  system  of  judi- 
cature are  noticed  by  the  domestic  courts  even  though  a  foreign 
country  is  involved.  Thus,  it  has  been  judicially  noticed  by  the 
courts  of  New  York  that  the  common  law  prevails  in  Canada,244 
and  that  it  does  not  prevail  in  France.245  For  the  purpose  of 
determining  what  system  of  judicature  prevails  in  a  sister  state, 
the  domestic  courts  will  take  judicial  notice  whether  the  two 
states  are  of  a  common  origin  or  were  settled  by  people  of  a 
common  country.246 

242  u.  S.  v.  Turner,  11  How.   (U.  S.)   663;   Doe  d.  Farmer's  Heirs  v. 
Eslava,  11  Ala.  1028;  Chouteau  v.  Pierre,  9  Mo.  3;   Ott  v.  Soulard,  9 
Mo.  581.     And  see  Malpica  v.  McKown,  1  La.  248,  20  A.  D.  279;  Arayo 
v.  Currel,  1  La.  528,  20  A.  D.  286. 

The  United  States  courts  will  take  judicial  notice  of  the  laws  of 
foreign  countries  which  have  ceded  territory  to  the  United  States  by 
treaty,  such  as  Spain  and  Mexico,  so  far  as  to  adjudicate  titles  claimed 
under  those  laws.'  U.  S.  v.  Chaves,  159  U.  S.  452,  459;  Fremont  v.  U. 
S.,  17  How.  (U.  S.)  542,  557;  U.  S.  v.  Perot,  98  U.  S.  428. 

243  Malpica  v.  McKown,  1  La.  248,  20  A.  D.  279;  Arayo  v.  Currel,  1  La. 
528,  20  A.  D.  286;  Stokes  v.  Macken,  62  Barb.  (N.  Y.)  145.     See  Lazier 
v.  Westcott,  26  N.  Y.  146,  82  A.  D.  404.     Contra,  as  to  Maine  and  New 
Brunswick,  Owen  v.  Boyle,  15  Me.  147,  32  A.  D.  143  (semble). 

244  Lazier  v.  Westcott,  26  N.  Y.  146,  82  A.  D.  404. 

The  courts  of  Louisiana  will  take  judicial  cognizance  of  the  preva- 
lence of  the  common  law  in  a  sister  state,  and  of  the  rule  of  the  com- 
mon law  that  a  married  woman  cannot  possess  personal  property  inde- 
pendently of  her  husband  except  where  a  trust  has  been  created  for  her 
separate  benefit.  But  statutory  modifications  of  the  common  law  must 
be  proved  if  relied  upon.  Rush  v.  Landers,  107  La.  549,  57  L.  R.  A. 
353. 

Judicial  notice  is  not  taken  of  the  practice  prevailing  in  a  foreign 
court.  Newell  v.  Newton,  10  Pick.  (Mass.)  470,  472. 

245  In  re  Hall,  61  App.  Div.  (N.  Y.)  266. 

Hammon,  Ev.— 27. 


18  LAW   OF  EVIDENCE.  §   108 

C.  INTERNATIONAL  AFFAIRS'. 

§  106.    Law. 

Courts  take  judicial  notice  of  the  established  principles  of 
international  law.247  An  exception  to  the  rule  that  foreign 
laws  are  not  judicially  known  to  the  courts  exists  in  the  case 
of  rules  which  by  the  common  consent  of  mankind  have  been 
acquiesced  in  as  law  by  the  various  nations, — such,  for  in- 
stance, as  the  law  of  navigation  as  to  carrying  lights.248  How- 
ever, the  general  maritime  law  is  in  force  in  this  country  only 
so  far  as  it  has  been  adopted  by  the  laws  and  usages  here 
prevailing.249 

§  107.    Treaties. 

Treaties  existing  between  the  United  States  and  foreign  na- 
tions are  judicially  noticed,  not  only  by  the  federal  courts,250 
but  also  by  the  courts  'of  the  various  states  comprising  the 
Union.251  And  the  same  rule  applies  to  cessions  of  territory 
from  state  to  state  or  from  a  state  to  the  federal  government.252 

§  108.    War  and  peace. 

The  courts  take  judicial  notice  of  whether  a  state  of  war  or 
of  peace  exists  between  the  domestic  government  and  other 

246  Birmingham  W.  W.  Co.  v.  Hume,  121  Ala.  168,  170,  77  A.  S.  R. 
43,  44. 

247  The  Paquete  Habana,  175  U.  S.  677;  Brown  v.  Piper,  91  U.  S.  37, 
Thayer,  Cas.  Ev.  17,  19;  U.  S.  v.  Chaves,  159  U.  S.  452,  457. 

248  The  Scotia,  14  Wall.  (U.  S.)  170. 

249  Liverpool  &  G.  W.  Steam  Co.  v.  Phenix  Ins.  Co.,  129  U.  S.  397. 

250  Callsen  v.  Hope,  75  Fed.  758 ;   Lacroix  Fils  v.  Sarrazin,  15  Fed. 
489;  U.  S.  v.  The  Peggy,  1  Cranch  (U.  S.)   103;   Ex  parte  McCabe,  46 
Fed.  363,  12  L.  R.  A.  589. 

251  Godfrey  v.  Godfrey,  17  Ind.  6,  79  A.  D.  448;  Carson  v.  Smith,  5 
Minn.  78,  88  (Gil.  58);  Dole  v.  Wilson,  16  Minn.  525  (Gil.  472);  Mont- 
gomery v.  Deeley,  3  Wis.  709,  712.     See  Const.  U.  S.  art.  6. 

252  Howard  v.  Moot,  64  N.  Y.  262;   People  v.  Snyder,  41  N.  Y.  397; 
Lasher  v.  State,  30  Tex.  App.  387,  28  A.  S.  R.  922. 


§   109  MATTERS  OF  NOTORIETY.  419 

nations,  and  also  of  proclamations  of  the  executive  concerning 
the  same;253  but  the  relation  existing  in  this  respect  between 
foreign  powers  is  not  taken  notice  of  without  evidence,  as  a 
rule.2" 

ART.    III.     MATTERS   OF   NOTORIETY. 

Science,  §  110. 

(a)  Course  of  nature. 

(b)  History. 

(c)  Geography. 
Arts,  §  111. 
Language,  §  112. 
Human  beings,  §  113. 
Animals,  §  114. 
Disease,  §  115. 

Tobacco  and  liquors,  §  116. 
Religious  affairs,  §  117. 
Municipal  affairs,  §  118. 
Railroads,  §  119. 
Electricity,  §  120. 
Banks  and  banking,  §  121. 

§  109.  Matters  of  common  knowledge  will  be  judicially  no- 
ticed without  evidence.  What  every  man  knows  need  not  be 
proved.  It  would  not  be  common  sense  to  require  proof  of  mat- 
ters which  are  obviously  susceptible  of  indisputable  proof. 
Moreover,  to  indulge  in  such  a  requirement  would  well-nigh 
defeat  the  administration  of  justice.  It  is  an  established  prin- 
ciple, therefore,  that  matters  of  notoriety  need  not  be  shown 
by  evidence,  but  will  be  noticed  judicially.255 

253  Wells  v.  Williams,  1  Ld.  Raym.  282;  Dupays  v.  Shepherd,  12  Mod. 
216;  Bolder  v.  Huntingfleld,  11  Ves.  283;  Rex  v.  De  Berenger,  3  Maule 
&  S.  67,  69;  Ogden  v.  Lund,  11  Tex.  688. 

The  same  rule  applies  in  case  of  civil  war,  so  far 'as  concerns  the 
domestic  courts.  The  Protector,  12  Wall.  (U.  S.)  700;  Prize  Cases,  .2 
Black  (U.  S.)  635,  667;  Perkins  v.  Rogers,  35  Ind.  124,  9  A.  R.  639. 

War  and  peace  as  matter  of  history,  see  §  110(b),  infra. 

2"  Bolder  v.  Huntingfield,  11  Ves.  283. 


420  LAW   OF  EVIDENCE.  §    1Q9 

To  dispense  with  the  necessity  for  evidence  on  this  ground, 
the  fact  in  dispute  must  be  unquestionably  notorious  in  the 
jurisdiction  where  the  court  exercises  its  powers.  A  fact  as 
to  which  there  is  doubt  will  not  be  judicially  noticed.256  Nor 
will  judicial  notice  be  taken  of  a  matter  merely  because  it  is 
stated  in  encyclopedias  or  other  books  of  knowledge.257 

265  UNITED  STATES:  'The  Peterhoff,  Blatchf.  Pr.  Gas.  463,  Fed.  Gas. 
No.  11,024;  King  v.  Gallun,  109  U.  S.  99;  Schollenberger  v.  Pa.,  171  U 
S.  1,  8;  Gibbons  v.  Ogden,  9  Wheat.  1,  220;  Phillips  v.  Detroit,  111  U. 
S.  604,  606;  The  Apollon,  9  Wheat.  362,  374;  Von  Mumm  v.  Wittemann, 
85  Fed.  966. 

ALABAMA:  Burdine  v.  Grand  Lodge,  37  Ala.  478;  Davis  v.  Petrino- 
vich,  112  Ala,  654,  36  L.  R.  A.  615. 

ARKANSAS:     State  v.  Frederick,  45  Ark.  347,  55  A.  R.  555. 

CALIFORNIA:  Everett  v.  Los  Angeles  Consol.  Elec.  R.  Co.,  115  Cal. 
105,  34  L.  R.  A.  350;  Daggett  v.  Colgan,  92  Cal.  53,  27  A.  S.  R.  95,  96. 

ILLINOIS:  Braceville  Coal  Co.  v.  People,  147  111.  66,  73,  37  A.  S.  R. 
206,  211;  Chicago,  B.  &  Q.  R.  Co.  v.  Warner,  108  111.  538,  546;  Frorer  v. 
People,  141  111.  171,  16  L.  R.  A.  492. 

INDIANA:     State  v.  Schoonover,  135  Ind.  526,  21  L.  R.  A.  767. 

LOUISIANA:     Compagnie  Francaise  v.  State  Board  of  Health,  51  La. <• 
Ann.  645,  56  L.  R.  A.  795. 

MAINE:     Putnam  v.  White,  76  Me.  551. 

MASSACHUSETTS:  Gaynor  v.  Old  Colony  &  N.  R.  Co.,  100  Mass.  208, 
97  A.  D.  96. 

MICHIGAN:     Grand  Rapids  v.  Braudy,  105  Mich.  670,  32  L.  R.  A.  116. 

NEBRASKA:  Redell  v.  Moores,  63  Neb.  219,  93  A.  S.  R.  431;  State  v. 
Boyd,  34  Neb.  435. 

NEW  YORK:     People  v.  Powers,  147  N.  Y.  104,  35  L.  R.  A.  502. 

OREGON:     McKay  v.  Musgrove,  15  Or.  162. 

TENNESSEE:     Kerns  v.  Perry,  48  S.'W.  729. 

WASHINGTON:  Bettman  v.  Cowley,  19  Wash.  207,  40  L.  R.  A.  815; 
Mullen  v.  Sackett,  14  Wash.  100. 

•  256  Blessing  v.  John  Trageser  S.  C.  Works,  34  Fed.  753;  Kinney  v. 
Koopman,  116  Ala.  310,  67  A.  S.  R.  119;  McCormick  Harvesting  Mach. 
Co.  v.  Jacobson,  77  Iowa,  582;  Patterson  v.  McCausland,  3  Bland  (Md.) 
69;  N.  W.  Mfg.  Co.  v.  Wayne  Circ.  Judge,  58  Mich.  381,  55  A.  R.  693, 
695;  Imbrie  v.  Wetherbee  &  Co.,  70  Mich.  103;  Tex.  Standard  Oil  Co. 
v.  Adoue,  83  Tex.  650,  29  A.  S.  R.  690,  698.  And  see  cases  cited  In 
notes  259,  260,  infra. 


§    109  MATTERS  OF  NOTORIETY.  421 

The  cases  on  this  head  turn  on  the  individual  experience 
and  education  of  the  different  judges  rather  than  on  any  well- 
defined  rule,258  and,  if  the  judge  entertains  any  doubt  on  the 
question  of  notoriety,  he  may  require  evidence  to  be  intro- 
duced.259 ''This  power,"  says  Mr.  Justice  Swayne,260  referring 
to  the  power  of  taking  judicial  notice,  "is  to  be  exercised  by 
courts  with  caution.  Care  must  be  taken  that  the  requisite 
notoriety  exists.  Every  reasonable  doubt  upon  the  subject 
should  be  resolved  promptly  in  the  negative." 

The  standard  of  notoriety  is  "liable  to  constant  changes 
with  the  advancement  and  gradual  diffusion  of  science ;  many 
things  which  formerly  were  occult,  and  to  be  proved  by  ex- 
perts,— as,  for  example,  many  facts  in  chemistry  and  the  like, 
— being  now,  in  the  same  places,  matters  of  common  learning  in 
the  public  schools.  The  same  may,  in  some  degree,  be  said  of 
every  branch  of  physical  science,  of  geographical  knowledge, 
and  of  the  religion  and  customs  of  foreign  nations."261  A 
corollary  of  this  statement  is  that  judicial  precedents  as  to 
what  may  not  be  officially  noticed  by  the  court  may  lose  their 
force  with  the  passing  of  the  years  and  the  greater  spread  of 
knowledge  regarding  the  subject  of  the  decision.  Matters 
which  are  little  known  today  may  be  well  known  tomorrow. 
Consequently,  a  decision  that  a  fact  is  not  so  well  known  as 
to  be  a  fit  subject  of  judicial  notice  may  rightly  be  disregarded 
by  the  same  court  in  later  years,  when  the  subject  to  which  the 

ZST  Kaolatype  Engraving  Co.  v.  Hoke,  30  Fed.  444.  On  the  other  hand, 
it  is  scarcely  necessary  to  add,  judicial  notice  will  not  be  refused  merely 
because  the  fact  in  question  has  not  been  recorded  in  books  of  history 
or  science.  Austin  v.  State,  101  Tenn.  563,  566,  70  A.  S.  R.  703,  705. 

ass  3  Greenl.  Ev.  §  269. 

250  Com.  v.  King,  150  Mass.  221;  Baxter  v.  McDonnell,  155  N.  T.  81 
40  L.  R.  A.  670,  673.  And  see  cases  cited  in  note  256,  supra. 

z«o  Brown  v.  Piper,  91  U.  S.  37,  Thayer,  Gas.  Ev.  17,  19. 

26i  3  Greenl.  Ev.  §  269. 


422  LAW   OF  EVIDENCE.  §    110 

decision  relates  has  become  a  matter  of  common  knowledge, — 
a  suggestion  to  be  digested  by  the  ' '  case  lawyer. '  '263 

In  applying  the  principle  that  matters  of  notoriety  will  be 
judicially  noticed,  the  courts  of  different  states  may  well  come 
to  different  conclusions  as  to  the  same  fact.  Facts  well  known 
by  every  person  of  intelligence  in  California,  for  instance,  may 
be  little  known  in  Maine,  and  vice  versa.263  The  question  is, 
Is  the  fact  a  matter  of  notoriety  in  the  jurisdiction  where  the 
case  is  tried  ?  If  so,  the  court  should  take  judicial  notice  of  it, 
even  though  it  is  not  well  known  in  other  jurisdictions.264 
If,  on  the  other  hand,  the  fact  is  not  well  known  there,  though 
it  may  be  a  matter  of  notoriety  elsewhere,  the  court  should 
ordinarily  require  it  to  be  proved. 

§  110.    Science. 

Such  matters  falling  within  the  domain  of  the  positive  scien- 
ces as  are  generally  recognized  as  true  may  be  noticed  without 
evidence,265  as,  for  example,  the  general  facts  of  natural  his- 

262  state  v.  Me.  Cent.  R.  Co.,  86  Me.  309;   Grimes  v.  Eddy,  126  Mo. 
168,  179.    In  Ex  parte  Powell,  I  Ch.  Div.  501,  the  court  refused  to  take 
official  notice  of  a  custom  which,  six  years  later,  in  Crawcour  v.  Salter, 
18  Ch.  Div.  30,  it  took  judicial  notice  of  as  being  well  known.     "In- 
ventions  new   and   useful,    and   new    industries   and   new   enterprises 
consequent  thereon,  necessarily  impose  the  duty  of  making  new  appli- 
cations  of   legal   principles.     The   world,   in   its    industries   and   com- 
merce, is  making  giant  strides,  and  judicial  science  must  struggle  to 
keep  pace  with  the  necessities  which  are  the  fruits  of  such  wonderful 
progress."     Thus,  "the  introduction  of  railroads,  as  highways  of  travel 
and   transportation,   has   seemingly   disturbed    some   of   the   old   land- 
marks, and  requires  of  the  courts,  in  accommodation  to  the  spirit  of 
progress,  that  we  apply  principles,  long  well  understood,  to  new  condi- 
tions and  exigencies."     Perry  v.  New  Orleans,  M.  &  C.  R.  Co.,  55  Ala. 
413,  28  A.  R.  740,  741,  743. 

263  3  Greenl.  Ev.  §  269. 

264  Smitha  v.  Flournoy's  Adm'r,  47  Ala.  345;  Geist  v.  Detroit  City  R., 
91  Mich.  446. 

265  Harvy  v.  Broad,  2  Salk.  626;  Huggins  v.  Daley,  99  Fed.  606,  48  L. 


§   HOa  MATTERS  OF  NOTORIETY.  423 

tory.266  Thus,  the  courts  will  take  official  notice  that  certain 
matter  is  inflammable,267  as  natural  gas268  and  kerosene  ;260  and 
that  gas  forms  from  petroleum.270  But  the  courts  cannot  take 
judicial  notice  of  matters  concerning  which  men  eminent  in  the 
particular  branch  of  learning  differ.271 

(a)  Course  of  nature.  Courts  take  judicial  notice  of  the 
scientific  facts  usually  to  be  found  in  almanacs.272  They  as- 
sume knowledge,  without  evidence,  of  the  ordinary  and  invaria- 
ble course  of  nature.278  Thus,  the  movements  of  the  heavenly 

R.  A.  320;  Falls  v.  U.  S.  Sav.  L.  &  B.  Co.,  97  Ala.  417,  431,  38  A.  S.  R. 
194,  209;  Bryan  v.  Beckley,  Litt.  Sel.  Gas.  91,  12  A.  D.  276. 

zee  Rex  v.  Woodward,  1  Moody,  Cr.  Gas.  323;  Lyon  v.  U.  S.,  8  U.  S. 
App.  409,  412. 

267  Contra,  as  to  gin,  turpentine,  and  coal  dust.  Cherokee  &  P.  C. 
&  M.  Co.  v.  Wilson,  47  Kan.  460;  Mosley  v.  Vermont  Mut.  Fire  Ins. 
Co.,  55  Vt.  142. 

It  is  judicially  known  that  dynamite  is  a  dangerous  explosive.  Fitz- 
simons  &  C.  Co.  v.  Braun,  199  111.  390,  59  L.  R.  A.  421. 

268jamieson  v.  Indiana  Nat.  G.  &  O.  Co.,  128  Ind.  555,  12  L.  R.  A. 
652;  Mississinewa  Min.  Co.  v.  Patton,  129  Ind.  472,  28  A.  S.  R.  203. 

Judicial  notice  is  taken  that  natural  gas  does  not  explode  spontane- 
ously. McGahan  v.  Indianapolis  Nat.  Gas  Co.,  140  Ind.  335,  49  A.  S.  R. 
199. 

That  leaks  occur  in  gas  pipes,  requiring  immediate  repair,  is  judicial- 
ly known.  Indianapolis  v.  Consumers'  Gas  Trust  Co.,  140  Ind.  107,  118, 
49  A.  S.  R.  183,  191. 

260  State  v.  Hayes,  78  Mo.  307.  Judicial  notice  is  not  taken  that  kero- 
sene is  a  refined  coal  oil  or  a  refined  earth  oil.  Bennett  v.  North 
British  &  M.  Ins.  Co.,' 8  Daly  (N.  Y.)  471.  Contra,  Morse  v.  Buffalo  F. 
Ins.  Co.,  30  Wis.  534,  11  A.  R.  587.  Nor  that  it  is  in  all  cases  ex- 
plosive. Wood  v.  N.  W.  Ins.  Co.,  46  N.  Y.  421. 

arc  Fuchs  v.  St.  Louis,  133  Mo.  168,  34  L.  R.  A.  118. 

271  St.  Louis  Gas  Light  Co.  v.  American  Fire  Ins.  Co.,  33  Mo.  App. 
348.  See  Elliott  on  Evidence,  p.  69. 

272Thayer,  Prelim.  Treat.  Ev.  291;  Y.  B.  9  Hen.  VII.  14,  1;  Queen  v. 
Dyer,  6  Mod.  41;  Page  v.  Faucet,  1  Leon.  242,  Cro.  Eliz.  227;  Company 
of  Stationers  v.  Seymour,  1  Mod.  256;  Harvey  v.  Broad,  6  Mod.  159, 
196. 

273  King  v.  Luffe,  8  East,  193,  202;  Chesapeake  &  O.  Canal  Co.  v.  Bal- 


424  LAW   OF   EVIDENCE.  § 

bodies  are  taken  notice  of  judicially,  as  the  time  of  the  rising 
and  the  setting  of  the  sun  or  moon  on  a  given  day.274  The 
courts  take  official  notice  of  the  succession  of  the  seasons,275 
,  and  of  the  general  changes  in  the  weather  attendant  thereon  in 
the  latitude  in  which  the  jurisdiction  lies.276  So,  the  general 
divisions  of  time  -are  judicially  noticed,277  the  difference  of 
time  in  different  longitudes,278  and  the  coincidence  of  days 
of  the  week  with  days  of  the  month.279  Judicial  notice  is  also 
taken  of  the  general  course  of  agriculture,  as  the  time  for 
planting  and  the  time  for  harvest.280 

timore  &  O.  R.  Co.,  4  Gill  &  J.  (Md.)  1.    As  to  conception  and  gestation, 
see  §  113,  infra. 

274  Louisville  &  N.  R.  Co.  v.  Brinckerhoff,  119  Ala.  606;   People  v. 
Ghee  Kee,  61  Cal.  404;  People  v.  Mayes,  113  Gal.  618;  State  v.  Morris, 
47  Conn.  179;   Case  v.  Perew,  46  Hun   (N.  Y.)   57.     Contra,  Tutton  v. 
Darke,  5  Hurl.  &  N.  647,  649;  Collier  v.  Nokes,  2  Car.  &  K.  1012. 

275  Tomlinson  v.  Greenfield,   31  Ark.  557;   Ross  v.  Boswell,  60   Ind. 
235;   Abel  v.  Alexander,  45  Ind.  523,  15  A.  R.  270,  274;    Patterson  v. 
McCausland,  3  Bland  (Md.)  69;  Lenahan  v.  People,  3  Hun  (N.  Y.)  165, 
168. 

276Haines  v.  Gibson,  115  Mich.  131;  Jackson  v.  Wisconsin  Tel.  Co., 
88  Wis.  243,  26  L.  R.  A.  101.  Contra,  it  seems,  Dixon  v.  Niccolls,  39  111. 
372,  89  A.  D.  312. 

The  condition  of  the  weather  on  a  given  day  in  the  past  cannot 
be  noticed  judicially.  McCormick  Harvesting  Mach.  Co.  v.  Jacobson, 
77  Iowa,  582. 

277  State  v.  Morris,  47  Conn.  179,  180;  Lenahan  v.  People,  3  Hun  (N. 
Y.)  165,  168.    See  People  r.  Constantino,  153  N.  Y.  24. 

278  Curtis  v.  March,  4  Jur.  (N.  S.)  1112. 

279Hoyle  v.  Cornwallis,  1  Strange,  387;  Page  v.  Faucet,  Cro.  Eliz. 
227;  Rodgers  v.  State,  50  Ala.  102;  Sprowl  v.  Lawrence,  33  Ala.  674; 
Dawkins  v.  Smithwick,  4  Fla.  158;  Swales  v.  Grubbs,  126  Ind.  106;  Mc- 
Intosh  v.  Lee,  57  Iowa,  356;  Kilgour  v.  Miles,  6  Gill  &  J.  (Md.)  268; 
Sasscer  v.  Farmers'  Bank,  4  Md.  409;  Philadelphia,  etc.,.  W.  &  B.  R. 
Co.  v.  Lehman,  56  Md.  209,  40  A.  R.  415,  416;  Morgan  v.  Burrow  (Miss.) 
16  So.  432;  State  v.  Todd,  72  Mo.  288;  Reed  v.  Wilson,  41  N.  J.  Law,  29; 
Wilson  v.  Van  Leer,  127  Pa.  321,  14  A.  S.  R.  854. 

The  courts  of  England  take  official  notice  also  of  the  correspondence 
between  the  dominical  year  and  the  year  of  any  king's  reign.  Holman 
v.  Burrow,  2  Ld.  Raym.  791,  794. 


§  HOb  MATTERS  OF  NOTORIETY.  425 

(b)  History.  Every  judge  is  bound  to  take  official  notice  of 
the  leading  facts  composing  the  general  history  of  the  coun- 
try wherein  he  presides,281  as  well  to  aid  him  in  a  proper  con- 


v.  Richardson,  74  Ala.  311;  Wetzler  v.  Kelly,  83  Ala.  440: 
Person  v.  Wright,  35  Ark.  169;  Floyd  v.  Ricks,  14  Ark.  286,  58  A.  D. 
374;  Mahoney  v.  Aurrecochea,  51  Cal.  429;  Brown  v.  Anderson,  77  Cal. 
236;  Ross  v.  Boswell,  60  Ind.  235;  Abel  v.  Alexander,  45  Ind.  523,  15 
A.  R.  270,  274;  Raridan  v.  Central  Iowa  R.  Co.,  69  Iowa,  527,  530  (sem- 
ble);  Garth  v.  JCaldwell,  72  Mo.  622. 

The  courts  will  take  official  notice  that,  owing  to  the  nature  of  cotton 
as  a  growing  crop,  and  the  usual  methods  adopted  of  gathering  and 
ginning,  it  is  peculiarly  exposed  to  theft  until  it  is  baled.  State  v. 
Moore,  104  N.  C.  714,  17  A.  S.  R.  696. 

Judicial  notice  is  not  taken  of  the  precise  day  on  which  a  crop  reaches 
its  maturity.  Dixon  v.  Niccolls,  39  111.  372,  89  Am.  Dec.  312;  Culver- 
house  v.  Worts,  32  Mo.  App.  419.  Nor  of  the  fact  that  sowing  oats  or 
planting  corn  in  a  young  orchard  is  not  good  care  or  husbandry;  nor 
that  good  care  will  make  poor  varieties  of  trees  bear  good  fruit.  Long 
v.  Pruyn,  128  Mich.  57,  92  A.  S.  R.  443. 

zsi  Augusta  Bank  v.  Earle,  13  Pet.  (U.  S.)  519;  De  Celis'  Adm'r  v. 
U.  S.,  IS  Ct.  Cl.  117,  126;  Lewis  v.  Harris,  31  Ala.  689;  Trenier  v. 
Stewart,  55  Ala.  458;  Conger  v.  Weaver,  6  Cal.  548,  65  A.  D.  528;  Bulpit 
v.  Matthews,  145  111.  345,  22  L.  R.  A.  55;  Braceville  Coal  Co.  v.  People, 
147  111.  66,  73,  37  A.  S.  R.  206,  211;  Williams  v.  State,  64  Ind.  553,  31 
A.  R.  135;  State  v.  Boyd,  34  Neb.  435;  Jack  v.  Martin,  12  Wend.  (N.  Y.) 
328  (semble)  ;  Sargent  v.  Lawrence,  16  Tex.  Civ.  App.  540;  Isaacs  v. 
Barber,  10  Wash.  124,  45  A.  S.  R.  772.  Contra,  Gregory  v.  Baugh,  4 
Rand.  (Va.)  611. 

The  supreme  court  of  Kansas,  in  1891,  took  judicial  notice  of  whether, 
thirty  years  previously,,  "that  region  of  country  known  as  'Pike's  Peak' 
lay  within  the  boundaries  of  the  territory  of  Kansas."  Carey  v.  Reeves, 
46  Kan.  571. 

The  court  may  take  official  notice  that,  before  and  after  the  state  was 
admitted  into  the  Union,  the  riparian  owners  along  the  navigable  fresh- 
water streams  within  its  limits  acted  on  the  assumption  that  the 
right  of  wharfage  was  incident  to  their  land,  and  built  wharves  ac- 
cordingly. Lewis  v.  Portland,  25  Or.  133,  161,  42  A.  S.  R.  772,  783. 
Also  that,  since  the  early  settlement  of  the  western  portions  of  the 
state,  where  irrigation  has  been  found  essential  to  successful  agricul- 
ture, a  practice  has  existed  of  appropriating  and  diverting  waters  irom 


426  LAW  OP  EVIDENCE.  § 

struction  of  its  laws282  as  because  such  facts  are  matters  of 
notoriety.  Important  illustrations  of  this  principle  are  found 
in  cases  wherein  the  court  has  taken  judicial  cognizance  of 
matters  concerning  the  Civil  War,  its  existence,  causes,  con- 
duct, duration,  and  results,  including  matters  relating  to  the 
period  of  reconstruction.283  The  current  history  of  the  public 
business  of  the  state  may  also  be  noticed  without  evidence,  as 
that  books  known  as  "plat  books"  have  been  kept  for  many 
years  as  public  records  by  the  recorders  in  the  various  counties 
of  the  state,  in  which  are  recorded  the  plats  of  towns  and  cities 
and  additions  thereto.284 
Local  history, — that  is,  history  affecting  only  an  inconsidera- 

their  natural  channels  into  canals  for  irrigation  purposes.  Crawford 
Co.  v.  Hall  [Neb.]  60  L.  R.  A.  889. 

It  is  matter  of  public  history  that  along  the  valleys  of  the  Lehigh 
and  Schuylkill  there  are  great  numbers  of  blast  furnaces,  rolling  mills, 
rail  mills,  foundries,  machine  shops,  and  numerous  other  manufactur- 
ing establishments,  which  consume  enormous  quantities  of  the  coal 
output  of  the  state,  and  that  at  the  same  time,  in  the  villages,  towns, 
and  cities  which  abound  in  these  regions,  an  immensely  large  industry 
in  the  buying  and  selling  of  coal  for  domestic  consumption  is  also  car- 
ried on.  Hoover  v.  Pa.  R.,  156  Pa.  220,  233,  36  A.  S.  R.  43,  51. 

History  of  legislation,  see  §  100 (b),  supra:  of  religion,  see  §  117, 
infra;  of  currency,  see  §  101  (a),  supra. 

282  stout  v.  Grant  County  Com'rs,  107  Ind.  343;  Redell  v.  Moores,  63 
Neb.  219,  93  A.  S.  R.  431.  History  of  legislation,  see  §  8(c),  note  135, 
supra. 

ass  The  Protector,  12  Wall.  (U.  S.)  700;  Cross  v.  Sabin,  13  Fed.  308; 
Cuyler  v.  Ferrill,  1  Abb.  U.  S.  169,  Fed.  Gas.  No.  3,523;  Ferdinand  v. 
State,  39  Ala.  706;  Foscue  v.  Lyon,  55  Ala.  440;  Rice  v.  Shook,  27  Ark. 

137,  11  A.  R.  783;  Williams  v.  State,  67  Ga.  260;  Perkins  v.  Rogers,  35 
Ind.  124,  9  A.  R.  639;  Hill  v.  Baker,  32  Iowa,  302,  7  A.  R.  193;  Lanfear 
v.  Mestier,  18  La.  Ann.  497,  89  A.  D.  658;   Douthitt  v.  Stinson,  63  Mo. 
268;   Swinnerton  v.  Columbian  Ins.  Co.,  37  N.  Y.  174,  93  A.  D.  560; 
Gates  v.  Johnson  County,  36  Tex.  144;   Caperton  v.  Martin,  4  W.  Va, 

138,  6  A.  R.  270;  Simmons  v.  Trumbo,  9  W.  Va.  358.     Military  orders, 
see  §  97  (c),  supra. 

ss*  Miller  v.  Indianapolis,  123  Ind.  196. 


MATTERS  OF  NOTORIETY.  427 

ble  portion  of  the  jurisdiction  where  the  court  presides, — and 
other  matters  which  have  not  become  generally  known,  or  as 
to  which  there  is  dispute,  will  not  be  judicially  noticed,  but 
must  be  established  by  evidence.285  For  instance,  the  courts  do 
not  take  judicial  notice  whether  a  particular  locality  was  held 
by  one  belligerent  or  the  other  at  a  particular  time  in  the 
period  of  the  Civil  War.286 

(c)  Geography.  The  court  will  assume  knowledge  of  many 
matters  of  geography,  taking  notice  of  the  leading  physical 
features  of  the  country,287  and  also  of  some  features  of  foreign 
geography;288  "but  the  minuteness  of  such  knowledge  is  in- 
versely proportional  to  the  distance,  being  much  more  specific 
and  detailed  in  regard  to  the  territory  over  which  the  court 
has  jurisdiction  than  with  respect  to  foreign  lands  or  even 
different  states."289  Thus,  judicial  notice  is  taken  of  the  ex- 

285McKinnon  v.  Bliss,  21  N.  Y.  206;  Morris  v.  Edwards,  1  Ohio,  189, 
207;  Kelley  v.  Story,  6  Heisk.  (Tenn.)  202;  Bishop  v.  Jones,  28  Tex. 
294.  Thus,  the  courts  cannot  take  official  notice  that  the  courts  of  a 
particular  county  in  Tennessee  were  closed  during  the  war.  Cross  v. 
Sabin,  13  Fed.  308.  Contra,  Killebrew  v.  Mui^phy,  3  Heisk.  (Tenn.)  546. 

zse  McDonald  v.  Kirby,  3  Heisk.   (Tenn.)  607. 

ZST  The  Apollon,  9  Wheat.  (U.  S.)  362,  374;  U.  S.  v.  La  Vengeance, 
3  Ball.  (U.  S.)  297;  Trenier  v.  Stewart,  55  Ala.  58;  Parker  v.  State, 
133  Ind.  178,  18  L.  R.  A.  567;  Mossman  v.  Forrest,  27  Ind.  233;  Gilbert 
v.  Moline  W.  P.  &  Mfg.  Co.,  19  Iowa,  319;  Carey  v.  Reeves,  46  Kan.  571; 
People  v.  Brooks,  101  Mich.  98;  Price  v.  Page,  24  Mo.  65;  Winnipiseogee 
Lake  Co.  v.  Young,  40  N.  H.  420;  Gulf,  C.  &  S.  F.  R.  Co.  v.  State,  72 
Tex.  404,  13  A.  S.  R.  815;  Isaacs  v.  Barber,  10  Wash.  124,  45  A.  S.  R.  772. 

The  topography  of  all  sections  of  a  state  are  noticed  by  the  courts 
thereof.  State  v.  Polk  County  Com'rs,  87  Minn.  325,  60  L.  R.  A.  161. 

Railroads  as  constituting  geographical  features,  see  §  119,  infra. 

Matters  of  political  geography  are  considered  also  in  other  connec- 
tions. See  §  95,  supra,  as  to  domestic  geography,  and  §  102,  supra,  as 
to  foreign  geography. 

ass  Whitney  v.  Gauche,  11  La.  Ann.  432.     See,  also,  §  102,  supra. 

ZSQ  H.  Campbell  Black,  24  Am.  Law  Reg.  570;  Pearce  v.  Langflt,  101 
Pa.  507,  512,  47  A.  R.  737. 


428  .      LAW   OF   EVIDENCE.  § 

istence,  source,  course,  and  destination,  and  of  the  character 
as  to  navigability,  ebb  and  flow  of  tide,  etc.,  of  the  larger 
streams  of  the  state  and  country.290  And  the  federal  courts 
take  official  notice  of  the  ports  and  waters  of  the  United 
States  wherein  the  tide  ebbs  and  flows,291  for  the  purpose  of 
determining  whether  the  jurisdiction  of  the  admiralty  prevails 
there.292 

Distances  between  well-known  places  within  or  without  the 
state  may  be  judicially  recognized  in  a  general  way,293  as  that 
a  named  town  is  more  than  thirty  miles  from  the  place  of 
trial;294  and  generally  of  the  time  it  takes  to  cover  that  dis- 
tance by  rail295  or  water.296 

290  The  Montello,  11  Wall.  (U.  S.)  411,  414;  King  v.  American  Transp. 
Co.,  1  Flip.  1,  Fed.  Cas.  No.  7,787;  Olive  v.  State,  86  Ala.  88,  4  L.  R.  A. 
33;  People  v.  Truckee  Lumber  Co.,  116  Cal.  397,  58  A.  S.  R.  183;  De 
Baker  v.  Southern  Cal.  R.  Co.,  106  Cal.  257,  46  A.  S.  R.  237;  Neader- 
houser  v.  State,  28  Ind.  257;  Cash  v.  Clark  County,  7  Ind.  227;  Whitney 
v.  Gauche,  11  La.  Ann.  432;  Com.  v.  King,  150  Mass.  221;  Talbot  v.  Hud- 
son, 16  Gray  (Mass.)  417,  424;  Cummings  v.  Stone,  13  Mich.  70;  Flani- 
gen  v.  Wash.  Ins.  Co.,  7  Pa.  306,  311;  Tewksbury  v.  Schulenberg,  41 
Wis.  584.  See  Harrigan  v.  Conn.  River  Lumber  Co.,  129  Mass.  580,  37 
A.  R.  387. 

The  character  of  small  streams  whose  capacity  is  not  historical  and 
traditional  will  not  be  noticed  judicially.  Buffalo  Pipe  Line  Co.  v. 
N.  Y.,  L.  E.  &  W.  R.  Co.,  10  Abb.  N.  C.  (N.  Y.)  107. 

2»i  Brown  v.  Piper,  91  U.  S.  37,  Thayer,  Cas.  Ev.  17,  19. 

292  Peyroux  v.  Howard,  7  Pet.  (U.  S.)  324. 

293Hoyt  v.  Russell,  117  U.  S.  401;  Mut.  Ben.  L.  Ins.  Co.  v.  Robison, 
58  Fed.  723,  19  U.  S.  App.  266,  22  L.  R.  A.  325;  Rice  v.  Montgomery,  4 
Biss.  75,  77,  Fed.  Cas.  No.  11,753;  Hegard  v.  Cal.  Ins.  Co.  (Cal.)  11 
Pac.  594;  Jamieson  v.  Ind.  N.  G.  &  O.  Co.,  128  Ind.  555,  12  L.  R.  A.  652; 
Pettit  v.  State,  135  Ind.  393,  412;  Pearce  v.  Langfit,  101  Pa.  507,  47  A. 
R.  737;  Blumenthal  v.  Pac.  Meat  Co.,  12  Wash.  331;  Siegbert  v.  Stiles, 
39  Wis.  533.  It  has  been  held,  however,  that  the  courts  will  not  take 
judicial  notice  of  the  local  situation  of  places  in  counties,  and  the  dis- 
tances between  them.  Deybel's  Case,  4  Barn.  &  Aid.  243;  Goodwin  v. 
Appleton,  22  Me.  453.  Nor  of  the  facilities  for  communication  between 
such  places.  Boggs  v.  Clark,  37  Cal.  236. 

294  Hinckley  v.  Beckwith,  23  Wis.  328. 


§  112  MATTERS  OF  NOTORIETY.  429 

Judicial  notice  may  be  taken  also  of  the  chief  cities  or  com- 
mercial centers  of  the  state,  and  of  the  chief  districts  which 
produce  a  given  agricultural  commodity.297 

§  111.     Arts. 

Well-known  arts  and  processes  are  judicially  recognized  by 
the  courts.298  Judicial  notice  is  accordingly  taken  of  telephony 
as  a  proper  means  of  communication,  and  of  its  nature,  opera- 
tion, and  ordinary  uses.299  And  photography  is  judicially 
recognized  as  a  proper  means  of  producing  correct  likenesses 
under  proper  conditions.300  However,  the  court  will  not  as- 
sume that  a  particular  photograph  accurately  or  fairly  repre- 
sents the  object  it  purports  to  represent;  and  accordingly  evi- 
dence must  be  introduced  to  that  effect,  in  order  to  render  the 
photograph  admissible  as  evidence.801 

§  112.    Language. 

The  courts  will  take  judicial  notice  of  the  vernacular  lan- 
guage, construing  words  in  general  use  in  the  same  sense  as 

29ispettit  v.  State,  135  Ind.  393,  412;  Fitzpatrick  v.  Papa,  89  Ind.  17, 
20;  Pearce  v.  Langfit,  101  Pa.  507,  47  A.  R.  737.  The  time  required  to 
transport  money  from  one  city  to  another  by  express  is  not  known 
judicially.  Rice  v.  Montgomery,  4  Biss.  75,  Fed.  Cas.  No.  11,753. 

296Oppenheim  v.  Wolf,  3  Sandf.  Ch.  (N.  Y.)  571. 

2»7  Texas  Standard  Oil  Co.  v.  Adoue,  83  Tex.  650,  29  A.  S.  R.  690,  698. 

298  Brown  v.  Piper,  91  U.  S.  37,  Thayer,  Cas.  Ev.  17;  Phillips  v.  De- 
troit, 111  U.  S.  604,  606;  Ligowski  Clay-Pigeon  Co.  v.  American  Clay- 
Bird  Co.,  34  Fed.  328;  Lamson  Consolidated  Service  Co.  v.  Siegel-Cooper 
Co.,  106  Fed.  734;  Beck  &  P.  L.  Co.  v.  Evansville  B.  Co.,  25  Ind.  App. 
662. 

299Shawyer  v.  Chamberlain,  113  Iowa,  742,  86  A.  S.  R.  411;  Globe 
Printing  Co.  v.  Stahl,  23  Mo.  App.  451;  Wolfe  v.  Missouri  P.  R.  Co.,  97 
Mo.  473. 

soo  Luke  v.  Calhoun  County,  52  Ala.  115;  Dyson  v.  New  York  &  N.  E. 
R.  Co.,  57  Conn.  9;  Cowley  v.  People,  83  N.  Y.  464,  38  A.  R.  464,  472; 
Udderzook  v.  Com.,  76  Pa.  340. 

aoi  Goldsboro  v.  Central  R.  Co.,  60  N.  J.  Law,  49.    See  Blair  v.  Pelham, 


430  LAW   OF   EVIDENCE.  §    112 

they  are  understood  by  the  mass  of  men ;  and  consequently  no 
allegation  or  evidence  of  such  meaning  is  necessary.302  If  they 
are  current,  this  is  true  also  of  technical  terms,303  and  of 
words  and  phrases  that  have  acquired  a  peculiar  meaning  in 
the  jurisdiction  where  the  court  sits,  whether  or  not  they  are 
to  be  found  in  the  dictionaries  ;304  but  newly  coined  terms  will 
not  be  judicially  noticed  unless  they  have  a  certain  meaning 
and  have  become  generally  known.305 

Upon  the  same  principle,  common  abbreviations  are  recog- 
nized by  the  courts  without  evidence  of  their  meaning  ;306  but, 

118  Mass.  420;  Dederichs  v.  Salt  Lake  City  R.  Co.,  14  Utah,  137,  35 
L.  R.  A.  802. 

302Towgood  v.  Pirie,  35  Wkly.  Rep.  729;  Watson  v.  State,  55  Ala.  158, 
160;  Rhodes  v.  Naglee,  66  Cal.  677;  Edwards  v.  San  Jose  Print.  Soc., 
99  Cal.  431,  37  A.  S.  R.  70;  Frese  v.  State,  23  Fla.  267;  Nelson  v.  Gush- 
ing, 2  Gush.  (Mass.)  519,  533;  Attorney-General  v.  Dublin,  38  N.  H. 
459,  513;  Smith  v.  Clayton,  29  N.  J.  Law,  357,  367;  Power  v.  Bowdle,  3 
N.  D.  107,  44  A.  S.  R.  511. 

The  fluctuations  and  mutations  of  the  language  are  also  noticed 
by  the  courts  without  evidence.  Vanada's  Heirs  v.  Hopkins'  Adm'rs, 
1  J.  J.  Marsh.  (Ky.)  285,  19  A.  D.  92;  Lampton  v.  Haggard,  3  T.  B. 
Mon.  (Ky.)  149. 

Meaning  of  words  as  applied  to  intoxicating  liquors,  see  §  116,  in- 
fra. 

sos  State  v.  Baldwin,  36  Kan.  1. 

so*  Shore  v.  Wilson,  9  Clark  &  F.  355,  568;  Adler  v.  State,  55  Ala.  16; 
Sinnott  v.  Colombet,  107  Cal.  187,  28  L.  R.  A.  594;  Clarke  v.  Fitch,  41 
Cal.  472;  Lohman  v.  State,  81  Ind.  15;  Linck  v.  Kelley,  25  Ind.  278,  87 
A.  D.  362;  Bailey  v.  Kalamazoo  Pub.  Co.,  40  Mich.  251;  Edgar  v.  Mc- 
Cutchen,  9  Mo.  768. 

The  court  knows  judicially  that  "brass  knuckles,"  so  called,  are  not 
always  made  of  brass,  but  may  be  made  of  any  other  metal.  Louis  v. 
State,  36  Tex.  Cr.  R.  52,  61  A.  S.  R.  832. 

sos  in  re  Bodmin  United  Mines  Co.,  23  Beav.  370;  Linck  v.  Kelley,  25 
Ind.  278,  87  A.  D.  362;  Baltimore  v.  State,  15  Md.  376.  Thus,  when 
matter  is  couched  in  language  having  a  covert  meaning,  or  in  words  or 
phrases  not  used  otherwise  than  as  slang  or  cant  terms,  the  court  will 
not  take  judicial  notice  of  the  meaning.  Edwards  v.  San  Jose  Print. 
Soc.,  99  Cal.  431,  435,  37  A.  S.  R.  70,  73. 


£     112  MATTERS  OF  NOTORIETY.  431 

unless  the  abbreviation  is  in  common  use,  its  meaning  must 
be  established  by  evidence.307 

These  rules  do  not  apply  to  foreign  languages.  The  courts 
do  not  take  judicial  cognizance  either  of  the  proper  mode  of 
speaking  or  writing  a  foreign  tongue,  or,  ordinarily,  of  the 
meaning  of  particular  words  belonging  to  it.308 

Matters  of  general  literature  which  have  become  a  part  of 
the  language,  such  as  well-known  fables,  may  be  noticed  by 
the  courts  without  evidence  of  their  meaning;309  and  in  a 
general  way  the  courts  take  judicial  notice  of  the  contents 
of  the  Bible.310 

soeAcc'f,  Heaton  v.  Ainley,  108  Iowa,  112. 

Adm'r,  Moseley's  Adm'r  v.  Mastin,  37  Ala.  216. 

A.  M.,  P.  M.,  Hedderich  v.  State,  101  Ind.  564. 

Christian  names,  Stephen  v.  State,  11  Ga.  225;  Weaver  v.  McElhenon, 
13  Mo.  89. 

C.  0.  D.,  U.  S.  Exp.  Co.  v.  Reefer,  59  Ind.  263;  State  v.  Moffit,  73 
Me.  278.  Contra,  McNichol  v.  Pac.  Exp.  Co.,  12  Mo.  App.  401. 

Dates,  Lakemeyer's  Estate,  135  Cal.  28,  87  A.  S.  R.  96. 

J.  P.,  Shattuck  v.  People,  4  Scam.  (111.)  477.  481. 

Land  descriptions,  Kile  v.  Yellowhead,  80  111.  208;  Paris  v.  Lewis, 
85  111.  597;  McChesney  v.  Chicago,  173  111.  75;  Frazer  v.  State,  106 
Ind.  471;  Richards  v.  Snider,  11  Or.  197.  Contra,  Power  v.  Bowdle,  3 
N.  D.  107,  44  A.  S.  R.  511. 

N.  P.,  Rowley  v.  Berrian,  12  111.  198,  200. 

Railroad  names,  Ripley  v.  Case,  78  Mich.  126,  18  A.  S.  R.  428.  Contra, 
Accolo  v.  Chicago,  B.  &  Q.  R.  Co.,  70  Iowa,  185. 

SOT  County  names,  Vivian  v.  State,  16  Tex.  App.  262. 

Judg.,  Cassidy  v.  Holbrook,  81  Me.  589. 

Printers'  marks,  Johnson  v.  Robertson,  31  Md.  476. 

State  names,  Ellis  v.  Park,  8  Tex.  205;  Russell  v.  Martin,  15  Tex. 
238.  (These  two  decisions  are  indefensible.) 

Trade  abbreviations,  Dages  v.  Brake,  125  Mich.  64,  84  A.  S.  R.  556. 

sos  State  v.  Johnson,  26  Minn.  316. 

809  Thayer,  Prel.  Treat.  Ev.  303.  And  see  Hoare  v.  Silverlock,  12  Q. 
B.  624,  12  Jur.  695.  In  Forbes  v.  King,  1  Dowl.  672,  the  court  refused 
to  take  judicial  notice  that  the  Christian  name  Friday  applied  to  a  man 
Imputes  degradation. 

310  Thayer,  Prel.  Treat.  Ev.  303;  State  v.  Edgerton  School  Board,  76 
Wis.  177,  20  A.  S.  R.  41. 


432  LAW   OP   EVIDENCE.  §   113 

§  113.    Human  beings. 

The  laws  of  conception  and  gestation  are  noticed  judicially 
so  far  as  applicable  to  human  beings;311  and  judicial  notice 
is  taken  also  of  the  average  duration  and  expectancy  of  hu- 
man life,  as  shown  by  standard  tables  of  mortality.312  So,  the 
courts  may  take  official  notice,  in  a  general  way,  of  the  size  of 
the  human  body  and  its  various  parts,313  and  of  the  effect  of 
the  loss  of  a  member  as  to  pain  and  subsequent  earning  ca- 
pacity.314 

Judicial  notice  is  taken  of  the  ordinary  habits  of  men, 
the  ordinary  rules  of  thinking  and  reasoning,  and  the  ordi- 
nary data  of  human  experience.315  Thus,  the  ways  of  children 

sn  Heathcote's  Divorce  Bill,  1  Macq.  H.  L.  Gas.  277;  Rex  v.  Luffe,  8 
East,  193,  202;  State  v.  Lingle,  128  Mo.  528,  540;  Erickson  v.  Schmill, 
62  Neb.  368.  And  see  Whitman  v.  State,  34  Ind.  360;  Floyd  v.  Johnson, 
2  Litt.  (Ky.)  109,  13  A.  D.  255,  259;  Eddy  v.  Gray,  4  Allen  (Mass.)  435. 

312  Gordon  v.  Tweedy,  74  Ala.  232,  49  A.  R.  813;  Kan.  City,  M.  &  B.  R. 
Co.  v.  Phillips,  98  Ala.  159;   McHenry  v.  Yokum,  27  111.  160;   Scheffler 
v.  Minneapolis  &  St.  L.  R.  Co.,  32  Minn.  518;  Johnson  v.  Hudson  River 
R.  Co.,  6  Duer  (N.  Y.)  633.     And  see  N.  E.  R.  Co.  v.  Chandler,  84  Ga. 
37;  Blair  v.  Madison  County,  81  Iowa,  313;  Estabrook  v.  Hapgood,  10 
Mass.  313;    Jackson  v.  Edwards,  7  Paige    (N.  Y.)    386,  408;    Davis  v. 
Standish,  26  Hun  (N.  Y.)  608.    Mortality  tables  are  not  conclusive  on 
the  court,  however.     Scheffler  v.  Minneapolis  &  St.  L.  R.  Co.,  supra. 
It  was  said  in  Gordon  v.  Tweedy,  supra,  that  the  Carlisle  and  Northamp- 
ton tables  of  mortality  have  been  superseded  in  America  by  the  Ameri- 
can Table  of  Mortality.     The  Northampton  table  was  used,  however,  in 
Davis  v.  Standish,  supra,  and  the  Carlisle  table  was  approved  in  Lin- 
coln v.  Power,  151  U.  S.  436,  441,  and  in  the  above  cited  cases  of  N.  E. 
R.  Co.  v.  Chandler,  Blair  v.  Madison  County,  and  Scheffler  v.  Minne- 
apolis &  St.  L.  R.  Co. 

313  Hunter  v.  N.  Y.,  0.  &  W.  R.  Co.,  116  N.  Y.  615;   Johns  v.  N.  W. 
Mut.  Rel.  Ass'n,  90  Wis.  332,  41  L.  R.  A.  587. 

si*  Chicago,  B.  &  Q.  R.  Co.  v.  Warner,  108  111.  538,  546. 

3isHopkinson  v.  Knapp  &  S.  Co.,  92  Iowa,  328;  Lamoureux  v.  N.  Y., 
N.  H.  &  H.  R.  Co.,  169  Mass.  338;  Lake  Shore  &  M.  S.  R.  Co.  v.  Miller, 
25  Mich.  274;  Reynolds  v.  N.  Y.  Cent.  &  H.  R.  R.  Co.,  58  N.  Y.  248,  252. 


§115  MATTERS  OF  NOTORIETY.  433 

are  judicially  noticed,318  their  earning  capacity,317  and  the  na- 
ture of  their  playthings.318  And  under  some  circumstances  the 
court  may  assume  knowledge  of  the  names  of  prominent  men.319 

§  114.    Animals. 

Various  matters  relating  to  animals  are  noticed  by  the 
courts  without  evidence.  Thus,  judicial  notice  is  taken  that 
coyotes  are  a  pest  to  breeders  of  small  domestic  animals  ;320  that 
different  varieties  of  fish  inhabit  the  same  waters;321  that 
horses  are  frightened  at  horseless  vehicles  ;322  that  horses  other- 
wise tractable  are  apt  to  run  away  if  suddenly  freed  from 
control  while  moving  ;323  that  pedigree  is  an  element  of  value  ;324 
and  of  other  matters  of  notoriety  concerning  animals.325 

§  115.    Disease. 

Facts  concerning  disease  may  be  officially  noticed  by  the 
courts,  if  of  sufficient  notoriety.  Thus,  judicial  notice  is  taken 
of  the  existence  and  the  nature  of  a  disease  among  trees  known 

sie  Spengler  v.  Williams,  67  Miss.  1. 

SIT  Southern  R.  Co.  v.  Covenia,  100  Ga.  46,  62  A.  S.  R.  31^. 

sis  Harris  v.  Cameron,  81  Wis.  239,  29  A.  S.  R.  891. 

3i9  Y.  B.  30  &  31  Edw.  I.  256.  We  have  seen,  in  other  connections, 
that  the  names  of  certain  public  officers  are  noticed  by  the  courts  with- 
out evidence.  See  §§  97-99,  104,  supra. 

szo  Ingram  v.  Colgan,  106  Cal.  113,  123,  46  A.  S.  R.  221,  228. 

321  State  v.  Mrozinskt,  59  Minn.  465,  27  L.  R.  A.  76. 

822  state  v.  Me.  Cent.  R.  Co.,  86  Me.  309;  Meyer  v.  Krauter,  56  N.  J. 
Law,  696,  24  L.  R.  A.  575.  However,  it  is  judicially  known  that  a  box 
car  standing  still  at  a  crossing  is  not  of  itself  a  frightful  object  to 
horses  of  ordinary  gentleness.  Gilbert  v.  Flint  &  P.  M.  R.  Co.,  51  Mich. 
488. 

«28  Joliet  v.  Shufeldt,  144  111.  403,  413,  36  A.  S.  R.  453,  458. 

824  Citizens'  R.  T.  Co.  v.  Dew,  100  Tenn.  317,  325,  66  A.  S.  R.  754,  759. 

82BLyon  v.  U.  S.,  8  U.  S.  App.  409,  412;  Hart  v.  Wash.  Park  Club, 
157  111.  9,  16,  48  A.  S.  R.  298,  303;  State  v.  Mrozinski,  59  Minn.  465,  27 
L.  R.  A.  76.  Diseases  of  animals,  see  §  115,  infra. 

Hammon,  Ev. — 28. 


434  LAW   OF   EVIDENCE.  §    116 

as  "the  yellows;"326  that  fright  may  wreck  the  nervous  sys- 
tem ;327  that  disease  may  be  communicated  by  means  of  second- 
hand clothing,328  or  through  the  uncleanliness  of  barbers;329 
and  that  cattle  from  a  certain  part  of  Texas  have  some  dis- 
ease communicative  to  cattle  outside  of  that  state.330  The 
courts  will  not,  however,  assume  knowledge  as  to  whether 
typhoid  fever  is  infectious,331  nor  that  a  man  is  in  great  danger 
of  contracting  glanders  by  coming  into  contact  with  a  horse 
having  that  disease.332 

§  116.    Tobacco  and  liquors. 

The  courts  will  take  judicial  notice  of  the  nature  and  quali- 
ties of  tobacco,333  and  of  the  harmlessness  of  the  process  of 
manufacturing  it  into  cigars;334  also,  that  cigarettes  are  dele- 
terious to  the  health;335  and  that  tobacco,  if  taken  into  the 
stomach,  may  produce  nausea.338  They  do  not  officially  know 
of  any  necessity  for  its  use  on  a  particular  day  by  a  confirmed 
smoker.337  , 

The  courts  will  take  judicial  notice  that  many  kinds  of  liquor 
are  intoxicating, — such,  for  instance,  as  alcohol,338  brandy,339 

326  state  v.  Main,  69  Conn.  123,  61  A.  S.  R.  30. 

327  Sloane  v.  Southern  Gal.  R.  Co.,  Ill  Cal.  668,  32  L.  R.  A.  193. 

328  Rosenbaum  v.  Newbern,  118  N.  C.  83,  32  L.  R.  A.  123. 
320  State  v.  Zeno,  79  Minn.  80,  48  L.  R.  A.  88. 

sso  Kimmish  v.  Ball,  129  U.  S.  217;  Grimes  v.  Eddy,  126  Mo.  168,  178, 
47  A.  S.  R.  653,  659. 

331  State  v.  Tenant,  110  N.  C.  609,  28  A.  S.  R.  715,  721. 

332  state  v.  Fox,  79  Md.  514,  47  A.  S.  R.  424. 

333  Com.  v.  Marzynski,  149  Mass.  68,  72. 

334  In  re  Jacobs,  98  N.  Y.  98,  50  A.  R.  636,  645. 

335  Austin  v.  State,  101  Tenn.  563,  70  A.  S.  R.  703. 

336  State  v.  Johnson,  118  Mo.  491,  40  A.  S.  R.  405. 

337  Mueller  v.  State,  76  Ind.  310,  40  A.  R.  245,  249. 
sss  Snider  v.  State,  81  Ga.  753,  12  A.  S.  R.  350. 

ssaFenton  v.  State,  100  Ind.  598;  State  v.  Tisdale,  54  Minn.  105; 
Thomas  v.  Com.,  90  Va.  92. 


§116  MATTERS  OF  NOTORIETY.  435 

whisky,840  gin,841  wine,842  and  Jamaica  ginger.848  It  is  other- 
wise as  to  cider;844  and  many  names  commonly  applied  to  in- 
toxicants will  not  be  assumed  by  the  court  to  refer  to  these 
alone,  if  they  are  frequently  applied  to  non-intoxicants  as 
well,345  examples  of  the  latter  qualification  being  beer S46  and 
other  malt  or  hop  liquors.847 

Judicial  notice  is  taken  that  the  use  of  beer  as  a  beverage  is 
not  necessarily  hurtful,348  and  that  intoxicating  liquors  are 

8*0  u.  S.  v.  Ash,  75  Fed.  651;  Frese  v.  State,  23  Fla.  267;  Schlicht  v. 
State,  56  Ind.  173;  Loveless  v.  State  (Tex.  Cr.  App.)  49  S.  W.  602. 

8*1  Com.  v.  Peckham,  2  Gray  (Mass.)  514,  Thayer,  Cas.  Ev.  17. 

342  wolf  v.  State,  59  Ark.  297,  43  A.  S.  R.  34;  Starace  v.  Rossi,  69  Vt. 
303.  And  see  Worley  v.  Spurgeon,  38  Iowa,  465. 

348  Mitchell  v.  Com.,  21  Ky.  L.  R.  222,  51  S.  W.  17. 

844Topeka  v.  Zufall,  40  Kan.  47;  Com.  v.  Reyburg,  122  Pa.  299.  In 
State  v.  Hutchinson,  72  Iowa,  561,  which  has  been  cited  to  the  con- 
trary of  the  rule  laid  down  in  the  text,  the  question  was  whether  the 
statute  exempted  intoxicating  cider  from  the  prohibition  against  sales 
of  intoxicating  liquor.  The  question  whether  the  court  would  take  no- 
tice of  whether  cider  is  or  is  not  intoxicating  was  not  passed  upon, 
since  there  was  positive  evidence  that  the  cider  in  question  was  in- 
toxicating. 

345  Intoxicating  Liquor  Cases,  25  Kan.  751,  37  A.  R.  284. 

846Hansberg  v.  People,  120  111.  21,  23;  Blatz  v.  Rohrbach,  116  N.  Y. 
450,  6  L.  R.  A.  669;  State  v.  Sioux  Falls  Brew.  Co.,  5  S.  D.  39,  45,  360, 
26  L.  R.  A.  138.  See  Kerkow  v.  Bauer,  15  Neb.  150;  Nevin  v.  Ladue,  3 
Denio  (N.  Y.)  437.  Contra,  Watson  v.  State,  55  Ala.  158;  Brifflt  v. 
State,  58  Wis.  39,  46  A.  R.  621.  Lager  beer  is  judicially  known  to  be 
intoxicating,  however.  State  v.  Goyette,  11  R.  I.  592;  State  v.  Church, 
6  S.  D.  89.  Contra,  People  v.  Hart,  24  How.  Pr.  (N.  Y.)  289.  But  it 
is  otherwise  as  to  rice  beer.  Bell  v.  State,  91  Ga.  227.  The  term  "malt 
liquor"  is  judicially  known  to  include  beer  (Watson  v.  State,  55  Ala. 
158;  Welsh  v.  State,  126  Ind.  71,  9  L.  R.  A.  664.  Contra,  Netso  v.  State, 
24  Fla.  363,  1  L.  R.  A.  825;  State  v.  Beswick,  13  R.  I.  211,  220),  provided 
it  be  lager  beer  (Netso  v.  State,  supra). 

847  Shaw  v.  State,  56  Ind.  188;   People  v.  Rice,  103  Mich.  350,  353. 
The  court  takes  judicial  notice  of  the  meaning  of  the  term   "malt 
liquor."    Adler  v.  State,  55  Ala.  16,  23. 

848  Beebe  v.  State,  6  Ind.  501,  63  A.  D.  391,  407. 


36  LAW   OP  EVIDENCE.  §   118 

produced  for  sale  and  consumption  principally  as  a  beverage  ;34* 
but  whether  a  person  may  recover  from  intoxication  in  five  or 
six  hours  is  not  judicially  known.350 

§  117.    Religious  affairs. 

The  courts  take  judicial  notice  of  the  well-known  sects  into 
which  the  religious  world  is  divided,  and  of  their  more  im- 
portant differences;351  but  not  of  their  general  organization 
and  administration,352  nor  of  their  laws  and  customs.353  And 
various  other  matters  affecting  religion  are  noticed  by  thev 
courts  without  evidence  because  of  their  notoriety.354 

§  118.    Municipal  affairs. 

Judicial  notice  is  taken  of  many  things  affecting  municipal 
affairs.  Thus,  the  courts  will  assume  knowledge  that  benefits 
may  be  derived  from  a  street  improvement  by  property  not 
fronting  thereon;365  that  property  on  well-improved  and  well- 
kept  streets  is  more  desirable  than  property  on  other  streets  ;35ft 

349  Wynehamer  v.  People,  13  N.  Y.  378,  387. 
sso  Brannan  v.  Adams,  76  111.  331,  336. 

351  Smith  v.  Pedigo,  145  Ind.  392,  32  L.  R.  A.  838;  Humphrey  v.  Burn- 
side,  4  Bush    (Ky.)  215,  225;  Attorney  General  v.  Dublin,  38  N.  H.  459, 
513;  State  v.  Edgerton  School  Board,  76  Wis.  177,  20  A.  S.  R.  41. 

352  Sarahass  v.  Armstrong,  16  Kan.  192;  Baxter  v.  McDonnell,  155  N. 
Y.  83,  40  L.  R.  A.  670;  Hill  Estate  Co.  v.  Whittlesey,  21  Wash.  142. 

sss  Youngs  v.  Ransom,  31  Barb.  (N.  Y.)  49;  Katzer  v.  Milwaukee,  104 
Wis.  16. 

354Alden  v.  St.  Peter's  Parish,  158  111.  631,  30  L.  R.  A.  232;  McAlister 
v.  Burgess,  161  Mass.  269,  24  L.  R.  A.  158;  Pfeiffer  v.  Detroit  Board  of 
Education,  118  Mich.  560,  42  L.  R.  A.  536;  State  v.  South  Kingstown 
Town  Council,  18  R.  I.  258,  273,  22  L.  R.  A.  65.  As  to  the  Bible,  see 
§  112,  supra. 

Judicial  notice  is  taken  by  the  courts  of  Utah  that  sealing  for  time 
and  eternity  according  to  the  ceremonies  of  the  Mormon  church  is  a 
marriage  ceremony.  Hilton  v.  Roylance,  25  Utah,  129,  58  L.  R.  A.  723. 

sss  Hayes  v.  Douglas  County,  92  Wis.  429,  31  L.  R.  A.  213. 

sse  Reinken  v.  Fuehring,  130  Ind.  382,  30  A.  S.  R.  247,  252. 


§   119  MATTERS  OF  NOTORIETY.  437 

that  vaults  are  commonly  constructed  under  sidewalks  in  front 
of  business  blocks;387  that  an  undertaker's  establishment  is 
an  offensive  thing  in  a  residence  district;858  and  that  dense 
black  smoke  emitted  from  a  chimney  may  be  a  nuisance.35* 
The  finances  of  a  particular  city  have  also  been  judicially  no- 
ticed in  a  general  way,360  and  various  other  matters  affecting 
the  municipality.861 

§  119.    Railroads. 

Judicial  notice  is  taken  of  the  existence  and  location  of  the 
various  railroads  of  importance  in  the  state,362  and  that  two 
roads  touching  the  same  points  are  parallel  and  competing 
lines.363  The  general  features  of  the  railroad  business  and  the 
practical  operation  of  railroads  are  also  judicially  noticed,864 
as  that  trains  running  on  a  particular  road  are  usually  con- 
trolled by  the  owners  of  the  road,865  and  that  telegraph  lines 
are  necessarily  maintained  in  connection  with  railroads  ;366  and 

«5T  Babbage  v.  Powers,  130  N.  Y.  281,  14  L.  R.  A.  398. 

sss  Rowland  v.  Miller,  139  N.  Y.  93,  22  L.  R.  A.  182. 

359  Moses  v.  U.  S.,  16  App.  D.  C.  428,  50  L.  R.  A.  532. 

sec  Davock  v.  Moore,  105  Mich.  120,  28  L.  R.  A.  783;  Harrington  v. 
Providence,  20  R.  I.  233,  38  L.  R.  A.  305. 

»ei  Bienville  Water-Supply  Co.  v.  Mobile,  112  Ala.  260,  57  A.  S.  R.  28; 
Holmes  v.  Detroit,  120  Mich.  226,  45  L.  R.  A.  121. 

362  Texas  &  P.  R.  Co.  v.  Black,  87  Tex.  160;  Gulf,  C.  &  S.  F.  R.  Co. 
v.  State,  72  Tex.  404,  13  A.  S.  R.  815.  It  is  judicially  known  that  a  cer- 
tain city  within  the  court's  territorial  jurisdiction  is  a  railroad  ter- 
minus. Smitha  v.  Flournoy's  Adm'r,  47  Ala.  345.  It  has  been  held,  how- 
ever, that  the  court  cannot  take  judicial  notice  whether  a  certain  road 
runs  through  a  particular  county.  Indianapolis  &  C.  R.  Co.  v.  Case, 
15  Ind.  42. 

sea  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  State,  2  Interst.  Com.  R.  335,  72  Tex. 
404,  13  A.  S.  R.  815. 

8«4  Atchison,  T.  &  S.  F.  R.  Co.  v.  Headland,  18  Colo.  477,  20  L.  R.  A. 
822;  Cleveland,  C.,  C.  &  St.  L.  R.  Co.  v.  Jenkins,  174  111.  398,  66  A.  S.  R. 
296. 

ses  South  &  N.  A.  R.  Co.  v.  Pilgreen,  62  Ala.  305. 

see  state  v.  Ind.  &  I.  S.  R.  Co.,  133  Ind.  69,  18  L.  R.  A.  502. 


438  LAW    OF   EVIDENCE.  §    119 

the  general  speed  of  trains  is  also  known  judicially.367  It  is 
judicially  noticed  that  trains  have  the  right  of  way  over  a 
grade  crossing  in  preference  to  travelers  on  the  highway;868 
and  that  an  unprotected  grade  crossing  is  dangerous.369  The 
custom  of  transferring  cars370  and  of  checking  baggage371  over 
connecting  lines,  the  mode  of  shipping  live  stock,372  the  use 
of  coupon  mileage  tickets,373  and  the  usage  in  reference  to 
tickets  for  berths  in  sleeping  cars,374  are  also  judicially  noticed. 
The  courts  take  official  notice  that  the  superintendent-  of  a  rail- 
road has  power  to  conduct  its  ordinary  business  transac- 
tions;375 that  passenger  conductors  are  required  to  enter  and 
leave  their  trains  while  in  motion;376  and  that  they  have  no 
authority  to  carry  passengers  without  payment  of  the  regular 
fare.377  And  judicial  notice  is  taken  also  of  the  relation  ex- 
isting between  conductor  and  brakeman;378  and  of  the  duties 
of  brakemen  with  reference  to  ejecting  trespassers  from  the 
train.379 

Facts  relating  to  street  railroads  are  also  recognized  by  the 

367  Pearce  v.  Langfit,  101  Pa.  507,  47  A.  R.  737. 

ses  Lake  Shore  &  M.  S.  R.  Co.  v.  Miller,  25  Mich.  274. 

seo  Chicago,  B.  &  Q.  R.  Co.  v.  State,  47  Neb.  549,  53  A.  S.  R.  557. 

370  Louisville  &  N.  R.  Co.  v.  Boland,  96  Ala.   626,  18  L.  R.  A.  260; 
Burlington,  C.  R.  &  N.  R.  Co.  v.  Dey,  82  Iowa,  312, '31  A.  S.  R.  477,  489. 

371  Isaacson  v.  New  York    C.  &  H.  R.  R.  Co.,  94  N.  Y.  278,  46  A.  R. 
142,  145. 

372  Michigan  S.  &  N.  I.  R.  Co.  v.  McDonough,  21  Mich.  165,  4  Am.  Rep. 
466,  473. 

373  Eastman  v.  Chicago  &  N.  W.  R.  Co.,  39  Fed.  552. 

374  Mann-Boudoir  Car  Co.  v.  Dupre,  13  U.  S.  App.  183,  21  L.  R.  A.  289. 

375  Sacalaris  v.  Eureka  &  P.  R.  Co.,  18  Nev.  155,  51  A.  R.  737. 

376  Dailey  v.  Preferred  Masonic  Mut.  Ace.  Ass'n,  102  Mich.  289,  299, 
26  L.  R.  A.  171. 

377  Condran  v.  Chicago,  M.  &  St.  P.  R.  Co.,  32  U.  S.  App.  182,  28  L.  R. 
A.  749. 

378  Mason  v.  Richmond  &  D.  R.  Co.,  Ill  N.  C.  482,  32  A.  S.  R.  814,  825. 

379  Farber  v.  Missouri  P.  R.  Co.,  116  Mo.  81,  20  L.  R.  A.  350. 


g    120  MATTERS  OF  NOTORIETY.  439 

courts  without  evidence  if  of  sufficient  notoriety.  Thus,  it  is 
judicially  known  that  street  railroads  are  common  carriers  of 
passengers;380  that  passengers  are  allowed  to  ride  on  the  plat- 
forms of  the  cars;381  and  that  freight  cars  are  run  over  some 
street  railroads.382 

To  dispense  with  the  necessity  for  evidence,  however,  the  mat- 
ter in  question  must  be  well  known.  To  illustrate,  the  courts 
cannot  take  judicial  notice  of  the  history  of  particular  lines 
of  railroad;383  nor  that  horse  cars  and  cable  cars  require  the 
same  means  of  protection  for  operators  as  is  required  on  elec- 
tric cars;384  nor  that  unprotected  frogs  and  switches  are  in- 
herently dangerous.885  Nor  can  they  take  judicial  notice  of 
the  effect  of  releasing,  upon  a  grade,  the  brake  of  a  car  pro- 
pelled only  by  momentum  ;886  nor  of  the  state  of  the  art  of  burn- 
ing coal  so  as  to  prevent  sparks  from  escaping;387  nor  of  the 
detailed  duties  of  servants  of  a  railroad  company;388  nor  of 
the  importance  of  the  shipper's  accompanying  his  live  stock  in 
transit.889 

§  120.    Electricity. 
Judicial  notice  will  be  taken  of  the  existence  and  nature  of 

sso  Donovan  v.  Hartford  St.  R.  Co.,  65  Conn.  201,  29  L.  R.  A.  297. 

881  Metropolitan  R.  Co.  v.  Snashall,  3  App.  D.  C.  420,  433. 

882  Qren  v.  Pingree,  120  Mich.  550,  46  L.  R.  A.  407. 
sss  Purdy  v.  Erie  R.  Go.,  162  N.  Y.  42,  48  L.  R.  A.  669. 
884  state  v.  Nelson,  52  Ohio  St.  88,  26  L.  R.  A.  317. 
sss  Mo.  P.  R.  Co.  v.  Lewis,  24  Neb.  848,  2  L.  R.  A.  67. 

ssa  Chicago,  St.  L.  &  P.  R.  Co.  v.  Champion,  9  Ind.  App.  510,  524,  53 
A.  S.  R.  357,  368. 

887  Qarrett  v.  Southern  R.  Co.,  101  Fed.  102,  49  L.  R.  A.  645. 

sss  Highland  Ave.  &  B.  R.  Co.  v.  Walters,  91  Ala.  435;  Southern  R. 
Co.  v.  Hagan,  103  Ga.  564;  McGowan  v.  St.  Louis  &  I.  M.  R.  Co.,  61 
Mo.  528,  532. 

88»  Atchison,  T.  &  S.  F.  R.  Co.  v.  Campbell,  61  Kan.  439,  48  L.  R.  A. 
251. 


440  LAW   OF   EVIDENCE.  §   121 

electricity,390  and  of  many  of  its  uses;381  that  an  incandescent 
light  is  safer  than  the  ordinary  light  ;892  and  that  electricity  as 
a  motive  power  for  street  cars  has  not  superseded  horses;898 
and  various  other  matters  more  or  less  directly  affecting  elec- 
tricity are  known  to  the  court  without  evidence.394 

The  court  will  not  take  official  notice  that  electricity  as 
used  by  street  railroad  companies  as  a  motive  power  is  danger- 
ous;395 nor  will  all  the  various  methods  of  generating,  trans- 
mitting, and  using  electricity  be  judicially  recognized.386 

§  121.    Banks  and  banking. 

Many  customs  and  usages  relating  to  banks  and  banking  are 
judicially  recognized  without  evidence.397  Thus,  the  courts 
take  official  notice  of  the  general  lien-  of  bankers  on  securities 
deposited  with  them  by  their  customers  ;398  of  the  mode  of  with- 
drawing deposits  from  savings  banks;389  of  the  custom  of  al- 
lowing deposits  to  be  checked  out  in  parcels  ;400  of  the  usage  of 
checking  against  deposits  of  checks  on  other  banks  before  col- 
lection thereof  ;401  of  the  mode  of  making  distant  collections  ;402 
and  of  the  practice  of  making  renewals  of  customers'  notes.408 

390  Crawfordsville  v.  Braden,  130  Ind.  149,  30  A.  S.  R.  214. 

391  State  v.  Murphy,  130  Mo.  10,  31  L.  R.  A.  798. 

392  Crawfordsville  v.  Braden,  130  Ind.  149,  '30  A.  S.  R.  214. 

393  Meyer  v.  Krauter,  56  N.  J.  Law,  696,  24  L.  R.  A.  575. 

39*  People  v.  W.  U.  Tel.  Co.,  166  111.  15,  36  L.  R.  A.  637;  Wyant  v. 
Cent.  Tel.  Co.,  123  Mich.  51,  81  A.  S.  R.  155. 

395  Taggart  v.  Newport  St.  R.  Co.,  16  R.  I.  668,  7  L.  R.  A.  205. 

396  Crawfordsville  v.  Braden,  130  Ind.  149,  30  A.  S.  R.  214. 
897  British  &  A.  Mortg.  Co.  v.  Tibballs,  63  Iowa,  468. 

398  Brandao  v.  Barnett,  3  C.  B.  519,  12  Clark  &  F.  787. 
899  White  v.  Gushing,  88  Me.  339,  51  A.  S.  R.  402,  405. 

400  Munn  v.  Burch,  25  111.  35. 

401  Seal  v.  Somerville,  5  U.  S.  App.  14,  17  L.  R.  A.  291. 

402  Lee  v.  Chillicothe  Branch  Bank,  1  Biss.  325,  331,  Fed.  Gas.  No. 
8,187;  Bowman  v.  First  Nat.  Bank,  9  Wash.  614,  43  A.  S.  R.  870. 

403  Merchants'  Nat.  Bank  v.  Hall,  83  N.  Y.  338,  38  A.  R.  434,  438. 


§   122  DISCRETION  OF  COURT.  441 

The  ordinary  duties  of  the  cashier  of  a  bank  are  known  to 
the  court;404  also,  that  some  one  besides  the  cashier  has  ac- 
cess to  the  funds,  though  it  is  not  judicially  known  what  offi- 
cers and  employes  are  required  to  conduct  the  business.405 
Judicial  notice  is  taken  also  of  the  elements  of  value  of  a  bank 
note.406 

ART.  IV.     DISCRETION   OF  COURT. 

§  122.  The  court  may  take  judicial  notice  of  a  fact  without 
regard  to  the  allegations  of  the  pleadings  concerning  it,407  and 
without  waiting  for  counsel  to  bring  the  matter  to  the  court's 
attention.408  And  so  far  as  governmental  matters  are  con- 
cerned, no  estoppel  or  agreement  of  the  parties  concerning  the 
fact  can  preclude  the  court  from  taking  official  notice  of  the 
truth  and  giving  judgment  accordingly.409 

It  is  often  said  that  whether  or  not  a  fact  shall  be  judicially 
noticed  is  a  question  directed  to  the  judge's  discretion.410  In 
so  far  as  the  term  "  discretion "  is  used  here  in  its  usual  legal 
meaning  of  "  power  of  a  judge  to  decide  in  accordance  with 

404  Sturges  v.  Circleville  Bank,  11  Ohio  St.  153,  78  A.  D.  296. 

405  La  Rose  v.  Logansport  Nat.  Bank,  102  Ind.  332,  340. 
4oe  Jones  v.  Fales,  4  Mass.  245,  252. 

tor  Jones  v.  U.  S.,  137  U.  S.  202;  Brown  v.  Piper,  91  U.  S.  37,  Thayer, 
Cas.  Ev.  17,  20;  State  v.  Jarrett,  17  Md.  309;  King  County  v.  Ferry,  5 
Wash.  536,  34  A.  S.  R.  880,  897.  See,  however,  Partridge  v.  Strange, 
Plowd.  77,  83,  84.  Thus,  a  djemurrer  does  not  admit  allegations  of  mat- 
ter which  the  court  judicially  knows  to  be  false.  Taylor  v.  Barclay,  2 
Sim.  213,  Thayer,  Cas.  Ev.  23;  People  v.  Oakland  Water  Front  Co.,  118 
Cal.  234,  244;  Southern  R.  Co.  v.  Covenia,  100  Ga.  46,  62  A.  S.  R.  312; 
Heaston  v.  Cincinnati  &  F.  W.  R.  Co.,  16  Ind.  275,  79  A.  D.  430,  432; 
Cooke  v.  Tallman,  40  Iowa,  133;  Attorney-General  v.  Foote,  11  Wis.  14, 
78  A.  D.  689. 

408  Brown  v.  Piper,  91  U.  S.  37,  Thayer,  Cas.  Ev.  17,  20;  Hunter  v. 
New  York,  O.  &  W.  R.  Co.,  116  N.  Y.  615. 

40»  Tucker  v.  State,  11  Md.  322. 

410  A  like  dictum  appears  in  Hunter  v.  New  York,  O.  &  W.  R.  Co.,  116 
N.  Y.  615,  621. 


442  LAW   OF   EVIDENCE.  §   122 

his  own  judgment  of  the  equities  of  the  case,  unhampered  by 
inflexible  rules  of  law,"411  this  statement  is  thought  to  be  in- 
accurate and  misleading,  and  is  so  often  made,  it  is  believed, 
through  a  confusion  of  the  usual  legal  meaning  of  the  term 
"discretion"  with  its  general  meaning  of  "opinion"  or  "judg- 
ment," in  the  broad  sense  of  the  two  latter  words. 

When  a  disputed  fact  is  presented  to  the  court  for  judicial 
notice,  three  questions  may  arise:  First.  Is  there  a  statute 
•  requiring  the  court,  directly  or  indirectly,  to  take  official  no- 
tice of  the  fact  ?  If  so,  the  court  will  follow  the  legislative  di- 
rection. Second.  If  no  such  statute  exists,  then  the  question 
arises,  is  the  matter  governed  by  precedent?  If  a  precedent 
exists,  and  the  course  of  time  has  not  rendered  it  nugatory,  the 
court  will  judicially  notice  the  disputed  fact  or  not,  according 
to  whether  or  not  it  was  judicially  noticed  in  the  previously 
decided  case.  Third.  If  there  is  no  precedent,  or  if  a  prece- 
dent exists,  but  is  deemed  to  be  of  no  force,. then  the  ques- 
tion arises,  is  the  disputed  fact  to  be  judicially  noticed  on 
principle?  Now,  as  we  have  seen,  there  are  two  general  prin- 
ciples that  govern  judicial  notice:  (1)  Matters  concerning 
the  government  are  noticed,  and  (2)  matters  of  common 
knowledge  are  noticed.  The  third  question,  then,  has  two 
branches:  (a)  Is  the  fact  in  dispute  a  matter  of  governmental 
concern?  If  so,  the  court  will  notice  it  without  evidence.  If 
it  is  not  such  a  matter,  then  the  second  branch  of  the  question 
presents  itself,  namely:  (b)  Is  the  disputed  fact  a  matter  of 
common  knowledge?  If  so,  the  court  will  judicially  notice  it. 
Otherwise,  the  fact  must  be  established  by  evidence. 

It  is  with  reference  to  the  two  branches  of  the  third  question 
that  the  court  is  said  to  exercise  its  "discretion."  But  "dis- 
cretion," as  the  term  is  usually  employed  by  lawyers,  does  not 

*n  Cyc.  Law  Diet.  "Discretion." 


g  122  DISCRETION  OF  COURT.  443. 

enter  into  the  decision.  If  the  disputed  fact  is  one  that  con- 
cerns the  government,  the  party  desiring  to  take  advantage  of 
it  has  a  right  to  insist  that  it  shall  be  noticed  without  evidence. 
So,  if  the  fact  is  one  of  common  knowledge,'  this  same  right 
exists.  The  judge  cannot  say,  "While  this  fact  is  one  that 
concerns  the  government,  or  while  this  fact  is  a  matter  of  no- 
toriety, still,  in  this  particular  case,  I  do  not  think  I  ought  to 
take  judicial  notice  of  it."  Nor,  on  the  other  hand,  may  the 
judge  say,  "While  this  fact  is  not  one  that  concerns  the 
government,  and  while  it  is  not  a  matter  of  notoriety,  yet,  in 
this  particular  case,  I  shall  notice  it  without  evidence."  Each 
party  litigant  has  his  rights  in  the  matter;  and,  once  the  char- 
acter of  the  disputed  fact  is  made  to  appear,  the  judge  has  no 
discretion  as  to  exercising  or  not  exercising  the  function  of 
judicial  notice.  What  the  judge  actually  does  in  deciding  the 
two  branches  of  the  third  question  is  to  exercise  his  "judg- 
ment," using  the  word  in  its  broad  sense,  as  to  whether  or  not 
the  disputed  fact  does  in  fact  concern  the  government  or  is. 
in  fact  a  matter  of  notoriety.  But  this  is  not  an  exercise  of 
"discretion,"  in  the  legal  sense  of  the  word;  it  is  merely  decid- 
ing the  question  according  to  the  judge's  individual  opinion  as 
to  the  character  of  the  fact  in  dispute. 

A  distinction  is  sometimes  made  in  this  connection  between 
facts  of  notoriety  and  facts  of  universal  recognition.  Notoriety 
may  be  used  in  two  'senses,  it  is  said :  First,  it  may  denote 
universal  acceptation  in  some  branch  of  knowledge.  This  is 
said  to  be  an  improper  use  of  the  word.  Second,  it  may 
denote  presence  in  the  mind  of  the  entire  community  at  the 
same  time.  This  is  said  to  be  the  only  correct  meaning  of  the 
word.  No  such  limitation  on  the  use  of  the  term  will  be  found 
in  the  dictionaries,  nor  have  any  cases  been  discovered  m 
which  it  is  made.  Truly,  there  is  a  distinction  between  uni- 
versal truths,  such  as  facts  connected  with  the  sciences,  the 


444  LAW   OF   EVIDENCE.  §   123 

arts,  etc.,  and  isolated  facts  of  notoriety,  such,  for  instance,  as 
the  great  railroad  strike  of  1894.  In  either  case,  however,  the 
principle  of  judicial  notice  is  the  same ;  the  court  can  no  more 
refuse  to  take  judicial  cognizance  of  one  matter  than  of  the 
other. 

It  may  be  observed,  in  closing,  that  it  is  often  a  delicate 
question  whether  a  given  fact  is  or  is  not  so  well  known  as 
to  be  a  proper  subject  of  judicial  notice.  It  should  not  be  a$ 
matter  of  surprise,  therefore,  if,  in  answering  the  question, 
different  courts  should  come  to  different  conclusions.  More- 
over, what  forms  today  a  matter  for  positive  evidence  may 
tomorrow  have  become  notorious,  so  that  the  court  may  well 
take  cognizance  of  it  without  evidence.  As  to  this  border- 
land of  knowledge,  the  law  of  judicial  notice  is  in  a  formative 
state,  the  same  as  are  the  various  subjects  to  which  it  re- 
lates.412 

ART.  V.     PRELIMINARY  INVESTIGATION    BY  COURT. 

Sources  of  information,  §  123. 
Procedure  as  to  investigation,  §  124. 

§  123.    Sources  of  information. 

Judicial  knowledge  on  the  part  of  the  judge  is  in  many 
cases  a  fiction,  so  far  as  it  implies  that  he  actually  knows  the 
truth  of  the  fact  at  the  time  the  question  arises;  but  to  en- 
able him  to  give  effect  to  the  principle  of  judicial  notice  he 
may,  if  need  be,  take  time  for  private  study,  and  refer  to  any 
proper  source  to  get  the  desired  information.413  Thus,  if  a 

412  See  §  109,  supra,  as  to  notoriety. 

413  Maps.     Hoyt  v.  Russell,  117  U.  S.  401,  405. 

Public  records.  Gary  v.  State,  76  Ala.  78,  84.  Contra,  Williams  v. 
Langevin,  40  Minn.  180. 

Charters  and  grants.    State  v.  Wagner,  61  Me.  178,  186. 

Mortality  tables.  Scheffler  v.  Minneapolis  &  St.  L.  R.  Co.,  32  Minn. 
518. 


§   123  PRELIMINARY    INVESTIGATION.  445 

question  arises  of  the  existence  of  a  statute,  or  of  the  time 
when  a  statute  takes  effect,  or  of  its  precise  terms,  the  judge 
may  resort  to  any  source  of  information  which  is  in  its  nature 
capable  of  conveying  to  the  judicial  mind  a  clear  and  satis- 
factory answer  to  the  question, — always  resorting  first  to 
that  which  is  in  its  nature  most  appropriate,  unless  the  then 
positive  law  prescribes  a  different  rule.41* 

The  sources  to  which  the  judge  may  resort  for  information 
concerning  a  fact  which  he  is  bound  to  notice  judicially  are 
sometimes  specified  by  statute,  as  where  the  legislature  declares 
that  a  certain  edition  of  the  laws  of  the  country  is  competent 

Time  piece.     See  People  v.  Constantino,  153  N.  Y.  24. 

The  almanac  is  commonly  referred  to  by  the  courts,  and  in  modern 
times  little  or  no  regard  is  paid  to  the  authority  under  which  it  is 
published.  Even  the  common  advertising  almanac  has  been  used. 
Page  v.  Faucet,  Cro.  Eliz.  227;  Allman  v.  Owen,  31  Ala.  167;  People  v. 
Mayes,  113  Cal.  618;  People  v.  Ghee  Kee,  61  Gal.  404;  Case  v.  Perew,  46 
Hun  (N.  Y.)  57. 

The  court  may  apply  for  information  to  the  proper  department  of 
the  government,  such  as  the  foreign  office  in  England,  and  the  state  or 
navy  department  in  the  United  States.  Taylor  v.  Barclay,  2  Sim.  213, 
Thayer,  Gas.  Ev.  23;  The  Charkieh,  42  Law  J.  Adm.  17;  Foster  v.  Globe 
Venture  Syndicate,  69  Law  J.  Ch.  375  [1900]  1  Ch.  811,  82  Law  T.  253; 
The  Paquete  Habana,  175  U.  S.  677;  Jones  v.  U.  S.,  137  U.  S.  202. 

Dictionaries  are  commonly  referred  to  for  the  meaning  of  words  and 
phrases.  Adler  v.  State,  55  Ala.  16;  Briffit  v.  State,  58  Wis.  39,  46  A. 
R.  621. 

Histories  may  be  consulted.  The  Montello,  11  Wall.  (U.  S.)  411, 
414;  Attorney  General  v.  Dublin,  38  N.  H.  459,  515;  Swinnerton  v.  Co- 
lumbian Ins.  Co.,  37  N.  Y.  174,  93  A.  D.  560.  And  the  same  is  true  of 
books  of  science  and  reference  books  in  general.  The  Montello,  supra; 
Lyon  v.  U.  S.,  8  U.  S.  App.  409,  412;  Carey  v.  Reeves,  46  Kan.  571. 

The  court  is  not  confined  to  books  in  its  search  for  information,  but 
may  inquire  of  men  learned  in  the  particular  branch  of  knowledge. 
Willoughby  v.  Willoughby,  1  Term  R.  763,  772;  Rogers  v.  Cady,  104 
Cal,  288,  290,  43  A.  S.  R.  100,  102. 

«4  Gardner  v.  Collector,  6  Wall.  (U.  S.)  499;  Barranger  v.  Baum,  103 
Ga.  465;  Hall  v.  Brown,  58  N.  H.  93,  95;  Wilson  v.  Phoenix  Powder 
Mfg.  Co.,  40  W.  Va.  413,  52  A.  S.  R.  890. 


446  LAW   OF   EVIDENCE.  §    124 

evidence  of  its  contents,  without  further  proof  or  authentica- 
tion. So  far  as  the  edition  embraces  general  or  public  laws, 
which  the  judge  is  bound,  even  in  the  absence  of  such  a 
statute,  to  notice  judicially,  the  sources  to  which  he  may  look 
to  ascertain  those  laws  are  pro  tanto  fixed,  and  his  discre- 
tion in  selecting  and  rejecting  sources  of  information  is  pro 
tanto  restricted.  While  he  may  not  be  limited  to  the  statu- 
tory source  alone,  yet  the  source  there  specified  may  not  be 
rejected.415 

§  124.    Procedure  as  to  investigation. 

The  judge  may  compel  counsel  to  aid  him  in  the  search  for 
information,416  by  the  production  of  evidence  or  otherwise, 
and  may  refuse  to  take  judicial  notice  of  the  disputed  fact 
until  its  truth  is  made  to  appear  to  his  satisfaction.417 

The  preliminary  investigation  conducted  by  the  court  is 
not  a  part  of  the  trial  of  the  issues  of  the  action.418  It  is 
merely  an  extrajudicial  proceeding  by  which  the  judge  quali- 
fies himself  to  fulfill  the  duties  of  his  office;  and  this  is  so, 
even  though  counsel  aid  him  in  the  search,  and  he  in  form 
receives  evidence  as  to  the  truth  of  the  matter  in  dispute. 
From  this,  two  things  follow:  First,  in  receiving  evidence 
as  to  the  truth  of  the  fact,  the  court  is  not  bound  by  the  va- 
rious rules  that  govern  the  introduction  of  evidence  in  the 
trial  proper;419  second,  the  right  and  duty  of  deciding  the 

415  Thayer,  Prel.  Treat.  Ev.  306. 

«6  Stephen,  Dig.  Ev.  art.  59;  Thayer,  Prel.  Treat.  Ev.  308;  Chandler 
v.  Grieves,  2  H.  Bl.  606,  note;  Doe  d.  Williams  v.  Lloyd,  1  Man.  &  G. 
671,  685. 

417  Van  Omeron  v.  Dowick,  2  Camp.  42,  44  (semble) ;  School  Dist.  v. 
Ins.  Co.,  101  U.  S.  472;   Hall  v.  Brown,  58  N.  H.  93,  95.     See  §   131, 
infra,  for  an  outline  of  the  procedure  on  this  preliminary  investigation. 

418  Rogers  v.  Cady,  104  Cal.  288,  290,  43  A.  S.  R.  100,  102;   State  v. 
Morris,  47  Conn.  179. 


§  125  PRIVATE  KNOWLEDGE  OF  COURT.  447 

truth  of  the  fact  devolves,  not  on  the  jury,  but  on  the  court. 
Issue  cannot  be  taken  on  a  matter  that  forms  a  proper  subject 
of  judicial  notice,  and  the  court  should  not  submit  the  ques- 
tion to  the  jury.  The  decision  of  it  is  a  question  for  the 
court  alone,  and  the  jury  must  obey  the  court's  instructions 
in  regard  to  it.420  Nor  is  the  rule  altered  by  the  fact  that 
the  information  sought  by  the  judge  is  laid  before  him  in  the 
way  of  the  ordinary  trial,  in  the  presence  of  the  jury,  and 
without  any  distinct  ruling  that  it  is  designed  for  the  court 
alone.421 

ART.  VI.     PRIVATE    KNOWLEDGE   OF  COURT. 

§  125.  The  judge  before  whom  a  case  is  heard  may  not  take 
advantage  of  his  private  knowledge  of  the  facts  in  issue. 
If  he  has  personal  knowledge  of  the  facts,  it  is  his  duty  to 
retire  from  the  trial  and  testify  as  a  witness.  Nor  may  either 
of  the  parties  take  advantage  of  the  judge's  private  knowl- 
edge of  the  facts  of  the  case.  If  those  facts  are  not  a  proper 
subject  of  judicial  notice,  they  must  be  proved,  the  same 
as  if  the  judge  had  no  knowledge  of  their  existence.422  The 

«»Thayer,  Prel.  Treat.  Ev.  280,  note;  People  v.  Chee  Kee,  61  Cal. 
404;  State  v.  Main,  69  Conn.  123,  136,  61  A.  S.  R.  30,  40. 

«o  Highland  Ave.  &  B.  R.  Co.  v.  Walters,  91  Ala.  435;  Rogers  v. 
Cady,  104  Cal.  288,  43  A.  S.  R.  100;  State  v.  Main,  69  Conn.  123,  136, 
137,  61  A.  S.  R.  30,  40,  41;  Hale  v.  N.  J.  Steam  Nav.  Co.,  15  Conn.  539, 
39  A.  D.  398,  405;  Southern  R.  Co.  v.  Covenia,  100  Qa.  46,  62  A.  S.  R. 
312;  Attorney  General  v.  Foote,  11  Wis.  14,  78  A.  D.  689.  See  §  129, 
infra,  as  to  Instructions.  The  truth  of  this  was  early  recognized.  3  Bl. 
Comm.  333;  Page  v.  Faucet,  Cro.  Eliz.  227. 

421  state  v.  Wagner,  61  Me.  178,  186. 

422  Rex  v.  Gouge,  3  Bulst.  115;  Detroit  W.  T.  &  J.  R.  Co.  v.  Crane, 
SO  Mich.  182;  State  v.  Edwards,  19  Mo.  674;  State  v.  Lincoln  Gas  Co., 
38  Neb.  33,  38;   Moses  v.  Julian,  45  N.  H.  52,  84  A.  D.  114,  116,  122; 
Wheeler  v.  Webster,  1  E.  D.  Smith   (N.  Y.)   1;   Marks  v.  Sullivan,  8 
Utah,  406,  20  L.  R.  A.  590,  593.    This  rule  Is  expressed  in  the  maxim, 
Won  refert  quid  notum  sit  judici,  si  notum  non  sit  in  forma  judicii. 


448  LAW   OF   EVIDENCE.  §    126 

same  principle  applies  to  appellate  judges.  A  court  of  re- 
view cannot  act  on  the  private  and  extrajudicial  knowledge 
of  its  individual  members  as  to  the  facts  of  the  case.423  An 
exception  to  the  rule  here  announced  exists  in  the  case  of  a« 
proceeding  for  contempt  of  court.  In  such  a  case,  the  judge 
may  take  notice,  without  evidence,  of  pertinent  facts  which 
came  within  the  cognizance  of  his  own  senses.424  And  an- 
other exception  occurs  with  reference  to  preliminary  ques- 
tions which  are  for  the  determination  of  the  court  alone. 
Thus,  the  judge  may  resort  to  his  personal  knowledge  on  a 
question  whether  a  signature  has  been  sufficiently  proved  to 
render  the  writing  to  which  it  is  appended  admissible  in 
evidence.425 

ART.  VII.     KNOWLEDGE  OF  JURORS. 

Private  knowledge,  §  126. 
Judicial  knowledge,  §  127. 

§  126.    Private  knowledge. 

In  former  times,  jurors  were  selected  because  of  their  pe- 
culiar knowledge  of  the  facts  of  the  case,  so  that  they  might 
render  a  just  verdict,  even  though  no  evidence,  in  the  modern 
sense  of  the  word,  should  be  introduced.426  This  is  no  longer 
the  case;  personal  knowledge  of  the  facts  may  disqualify 
a  juror.  If  he  has  such  knowledge,  and  the  voir  dire  does 
not  disclose  it,  he  should  inform  the  court,  so  that  he  may 
be  sworn  and  testify  as  a  witness.  Otherwise,  his  knowledge 
does  not  receive  that  legal  scrutiny  to  which  all  evidence  is 

The  judge  may  take   judicial   notice   of   his  own   official  acts   in   the 
case  before  him.     See  note  93,  supra. 

423  New  Orleans  v.  Ripley,  5  La.  121,  25  A.  D.  175. 

424  Myers  v.  State,  46  Ohio  St.  473,  15  A.  S.  R.  638. 

425  Brown  v.  Lincoln,  47  N.  H.  468. 

426Thayer,  Prel.  Treat.  Ev.  170,  296;  3  Bl.  Comm.  374;  Schmidt  v. 
N.  Y.  U.  M.  F.  Ins.  Co.,  1  Gray  (Mass.)  529,  535,  536. 


§   127  KNOWLEDGE    OF   JURORS.  449 

justly  subjected;  the  right  of  cross-examination  is  lost,  and 
it  cannot  be  known  upon  what  foundation  the  verdict  rests. 
If  the  juror  does  not  follow  this  course,  and,  in  arriving 
at  a  verdict,  acts  upon  his  private  knowledge,  the  verdict 
is  void  and  may  be  set  aside.427 

§  127.    Judicial  knowledge. 

Modern  jurors  thus  being  judicial  officers,  bound  to  act 
only  upon  the  evidence  adduced  at  the  trial,  the  principle 
of  judicial  notice,  so  far  as  matter  of  common  knowledge  is 
concerned,  applies  also  to  them.  The  fact  that  they  are  a 
tribunal  subordinate  to  the  court  does  not  change  the  nature 
of  their  office;  it  merely  subjects  them  in  many  respects  to 
the  direction  of  the  judge.  They  have  the  same  right  as  the 
court  to  act  upon  facts  going  to  make  up  the  common  stock 
of  hiiman  knowledge,  and  they  are  subject,  with  respect  to 
the  exercise  of  that  right,  to  the  same  restrictions  as  the 
court.428  This  position  is  unquestionable  so  far  as  it  con- 

«7Thayer,  Prel.  Treat.  Ev.  170,  296;  Parks  v.  Ross,  11  How.  (U.  S.) 
362,  373;  Head  v.  Hargrave,  105  U.  S.  45,  49;  Chattanooga,  R.  &  C.  R. 
Co.  v.  Owen,  90  Ga.  265;  Ottawa  G.  L.  &  C.  Co.  v.  Graham,  28  111.  73, 
81  A.  D.  263;  Chicago,  R.  I.  &  P.  R.  Co.  v.  Spring  Hill  Cemetery 
Ass'n,  9  Kan.  App.  882;  State  v.  Me.  Cent.  R.  Co.,  86  Me.  309,  312; 
Patterson  v.  Boston,  20  Pick.  (Mass.)  159,  166;  Schmidt  v.  N.  Y.  Union 
M.  F.  Ins.  Co.,  1  Gray  (Mass.)  529,  535;  Woodbury  v.  Anoka,  52  Minn. 
329;  Lenahan  v.  People,'  3  Hun  (N.  Y.)  164,  5  Thomp.  &  C.  265;  State 
v.  Perry,  121  N.  C.  533,  61  A.  S.  R.  683;  State  v.  Gaymon,  44  S.  C. 
333,  51  A.  S.  R.  861;  Dunbar  v.  Parks,  2  Tyler  (Vt.)  217;  Peppercorn 
v.  Black  River  Falls,  89  Wis.  38,  46  A.  S.  R.  818. 

428Thayer,  Prel.  Treat.  Ev.  296;  U.  S.  v.  Burns,  5  McLean,  23,  Fed. 
Cas.  No.  14,691;  Chicago,  B.  &  Q.  R.  Co.  v.  Warner,  108  111.  538,  546; 
McCormick  Harvesting  Mach.  Co.  v.  Jacobson,  77  Iowa,  582;  State  v. 
Me.  Cent.  R.  Co.,  86  Me.  309;  Com.  v.  Peckham,  2  Gray  (Mass.)  514, 
Thayer,  Cas.  Ev.  17;  Huntress  v.  Boston  &  M.  R.  Co.,  66  N.  H.  185,  49 
A.  S.  R.  600,  602;  Lenahan  v.  People,  3  Hun  (N.  Y.)  164,  167,  5  Thomp. 
ft  C.  265. 

Hammon,  Ev. — 29. 


450  LAW   OF   EVIDENCE.  §    127 

cerns  matters  of  which  the  court  itself  has  taken  judicial 
notice,  and  of  whose  existence  it  has  accordingly  informed 
the  jury  by  instruction.  In  such  a  case,  as  we  have  seen,429 
the  jury  are  bound  to  obey  the  court's  direction.  As  to  mat- 
ters concerning  which  the  instructions  are  silent,  there  is 
some  question.  It  would  seem,  however,  that  the  failure  of 
the  court  to  refer  to  a  matter  of  common  knowledge  in  the 
instructions  should  not  deprive  the  jury  of  the  right  to  take 
notice  of  it  in  determining  the  weight  and  effect  of  the  evi- 
dence;430 but  that  of  material  facts  not  affecting  merely  the 
weight  and  effect  of  the  evidence,  the  jury  cannot  take  notice 
without  special  instructions.431  This  much,  however,  is  cer- 
tain: While  the  law  does  not  permit  a  juror  to  act  upon  the 
existence  of  a  particular  fact  known  only  to  himself,  and 
not  a  matter  of  common  observation  or  general  knowledge, 
yet  it  permits  him, — even  requires  him, — in  determining  the 
force  and  effect  of  the  evidence  adduced  in  the  trial,  to  apply 
his  general  knowledge  and  experience.  He  is  not  bound  to 
regard  the  evidence  precisely  as  given,  but  must  consider  its 
truth  and  weight  by  his  knowledge  of  men  and  the  common 
affairs  of  life.432 

429  See  §  124,  supra. 

430  Bradford  v.  Cunard   S.   S.  Co.,  147  Mass.  55;   'Lillibridge  v.  Mc- 
Cann,  117  Mich.  84,  72  A.  S.  R.  553,  555;  Huntress  v.  Boston  &  M.  R. 
Co.,  66  N.  H.  185,  49  A.  S.  R.  600;  Citizens'  Rapid  Transit  Co.  v.  Dew, 
100  Tenn.  317,  322,  66  A.  S.  R.  754,  757;  Gunn  v.  Ohio  River  R.  Co.,  36 
W.  Va.  165,  32  A.  S.  R.  842. 

431  Illinois  C.  R.  Co.  v.  Greaves,  75  Miss.  360. 

432  Lafayette  Bridge  Co.  v.  Olson,  108  Fed.  335,  47  C.  C.  A.  367,  54 
L.  R.  A.  33;  Stevens  v.  State,  3  Ark.  66;  Ottawa  Gas  Light  &  C.  Co.  v. 
Graham,  28  111.  73,  81  A.  D.  263,  265;  Hopkinson  v.  Knapp  &  S.  Co.,  92 
Iowa,  328;    State  v.  Maine  Cent.  R.  Co.,  86  Me.  309;   Schmidt  v.  New 
York  U.   Mut.   Fire  Ins.   Co.,   1   Gray    (Mass.)    529,    536;    Manning  v. 
West  End  St.  R.  Co.,  166  Mass.  230,  231;  Lamoureux  v.  New  York,  N. 
H.  &  H.  R.  Co.,  169  Mass.  338;  Reynolds  v.  New  York  Cent.  &  H.  R. 


§    127  KNOWLEDGE    OF   JURORS.  451 

In  consonance  with  these  principles,  it  has  been  held  that 
the  jury  may  apply  their  general  knowledge  and  experience 
in  assessing  damages,433  but  that  they  cannot  reject  the  evi- 
dence of  competent  witnesses,  and  rely  altogether  on  their 
own  judgment  in  making  up  the  verdict;434  that  they  may 
assume  knowledge  of  matters  affecting  every  mail's  credibil- 
ity,435 but  that  they  cannot  apply  their  private  knowledge 
of  facts  affecting  the  character  of  a  particular  witness;436 

R.  Co.,  58  N.  Y.  248,  252;  Willis  V.  Lance,  28  Or.  371.  Contra,  Burrows 
v.  Delta  Transp.  Co.,  106  Mich.  582,  29  L.  R.  A.  468,  474.  In  the  ab- 
sence of  all  evidence  upon  a  material,  isolated,  and  non-notorious  fact, 
however,  the  jury  cannot  arrive  at  a  verdict  upon  mere  inference,  con- 
jecture, and  personal  experience.  Sherman  v.  Menominee  R.  L.  Co., 
77  Wis.  14. 

«3  Head  v.  Hargrave,  105  U.  S.  45,  49;  Houston  v.  State,  13  Ark.  66; 
Ottawa  Gas  Light  &  C.  Co.  v.  Graham,  28  111.  73,  81  A.  D.  263,  265; 
Green  v.  Chicago,  97  111.  370;  Springfield  Consol.  R.  Co.  v.  Hoeffner, 
175  111.  634;  Schmidt  v.  New  York  Union  Mut.  Fire  Ins.  Co.,  1  Gray 
(Mass.)  529,  535;  Patterson  v.  Boston,  20  Pick.  (Mass.)  159;  Parks  v. 
Boston,  15  Pick.  (Mass.)  198;  Houston  &  T.  C.  R.  Co.  v.  Dumas  (Tex. 
Civ.  App.)  43  S.  W.  609.  In  Massachusetts,  the  court  has  gone  so  far 
as  to  hold  that,  in  an  action  for  personal  injuries,  the  plaintiff  may 
recover  for  expenditures  for  medical  attendance,  without  proving  a 
definite  sum,  the  jury  being  allowed  to  use  their  own  knowledge  of 
the  charges  ordinarily  made  by  physicians  in  determining  the  amount 
to  be  allowed.  McGarrahan  v.  New  York,  N.  H.  &  H.  R.  Co.,  171  Mass. 
211.  And  they  may  assess  damages  for  described  injury  to  goods  of  a 
certain  value,  even  though  there  is  no  evidence  as  to  the  precise 
amount  of  the  damage.  Bradford  v.  Cunard  S.  S.  Co.,  147  Mass.  55. 

434Feoria  Gas  Light  &  Coke  Co.  v.  Peoria  Terminal  R.  Co.,  146  111. 
372,  21  L.  R.  A.  373.  Contra,  Bee  Print.  Co.  v.  Hichborn,  4  Allen 
(Mass.)  63. 

435  Jenney  Elec.  Co.  v.  Branham,  145  Ind.  314,  33  L.  R.  A.  395.     See 
Daggers  v.  Van  Dyck,  37  N.  J.  Eq.  130,  132. 

436  Chattanooga,  R.  &  C.  R.  Co.  v.  Owen,  90  Ga.  265;  Schmidt  v.  New 
York  U.  Mut.  Fire  Ins.  Co.,  1  Gray  (Mass.)  529;  Donston  v.  State,  6 
Humph.   (Tenn.)   274;   Johnson  v.  Superior  R.  T.  R.  Co.,  91  Wis.  233. 
Contra,  State  v.  Jacob,  30  S.  C.  131,  14  A.  S.  R.  897;  McKain  v.  Love, 
2  Hill  (S.  C.)  506,  27  Am.  Dec.  401. 


452  LAW   OF   EVIDENCE.  §   128 

and  that,  in  a  trial  for  making  a  seditious  speech,  they  may 
take  into  consideration  what  they  know  of  the  state  of  the 
country  and  of  society  generally  at  the  time  the  language  was 
used,  but  that  they  cannot,  without  evidence,  take  into  con- 
sideration particular  facts  attending  the  particular  meeting 
at  which  the  words  were  spoken.437 

ART.  VIII.     EFFECT  OF   JUDICIAL   NOTICE. 

Necessity  for  evidence,  §  128. 
Instructions,  §  129. 
Argument  of  counsel,  §  130. 

§  128.    Necessity  for  evidence. 

The  principal  effect  of  the  doctrine  of  judicial  notice  is 
that  it  dispenses  with  the  necessity  of  proving  the  fact  of 
which  the  court  takes  judicial  cognizance.438  Indeed,  this  is 
the  single  and  limited  object  of  the  principle.  It  does  not 
dispense  with  requirements  of  form  which  regulate  the  mode 

437  Best,  Ev.  §  254,  citing  Regina  v.  Jones,  Centr.  Cr.  Ct.  R.  (1841) 
MS. 

438Thayer,  Prel.  Treat.  Ev.  277;  Crowford  v.  Blisse,  2  Bulst.  150; 
Gady  v.  State,  83  Ala.  51;  Neville  v.  Kenney,  125  Ala.  149;  People  v. 
Chee  Kee,  61  Gal.  404;  Sturdevant's  Appeal,  71  Conn.  392,  Thayer,  Cas. 
Ev.  95,  96;  State  v.  Main,  69  Conn.  123,  61  A.  S.  R.  30;  Gunning  v. 
People,  189  111.  165,  167,  82  A.  S.  R.  433,  435;  Secrist  v.  Petty,  109  111. 
188;  Chicago,  B.  &  Q.  R.  Co.  v.  Warner,  108  111.  538,  546;  State  v. 
Downs,  148  Ind.  324;  State  v.  Chingren,  105  Iowa,  169;  State  v.  Intoxi- 
cating Liquors,  73  Me.  278;  Chesapeake  &  O.  Canal  Co.  v.  Baltimore  & 
O.  R.  Co.,  4  Gill  &  J.  (Md.)  1;  State  v.  Scott,  59  Neb.  499;  Wilson  v. 
Van  Leer,  127  Pa.  371,  14  A.  S.  R.  854;  Searls  v.  Knapp,  5  S.  D.  325, 
49  A.  S.  R.  873;  Austin  v.  State,  101  Tenn.  563,  7  A.  S.  R.  703;  Hart 
v.  Baltimore  &  O.  R.  Co.,  6  W.  Va.  336. 

There  is  no  necessity  for  a  finding  as  to  the  existence  of  a  matter 
which  is  a  proper  subject  of  judicial  notice.  Steets  v.  New  York 
El.  R.  Co.,  79  Hun  (N.  Y.)  288. 

Facts  of  which  the  court  will  take  judicial  notice  need  not  be  pleaded. 
Green  v.  Tidball,  26  Wash.  338,  55  L.  R.  A.  879. 


§   130  EFFECT  OF  JUDICIAL  NOTICE.  453 

of  bringing  controversies  into  court,  and  of  stating  and  con- 
ducting them;  much  less  with  rules  of  substantive  law.  It 
is  a  rule  concerning  evidence  merely.439 

While  evidence  of  a  fact  which  forms  a  proper  subject  of 
judicial  notice  is  not  necessary,  yet  if  the  court  permits  or 
requires  evidence  of  it,  and  evidence  is  accordingly  introduced 
and  the  fact  established,  the  error  is  ordinarily  harmless.440 

§  129.    Instructions. 

i 

Judicial  notice  being  a  conclusive  recognition  of  the  fact 
in  question,  it  follows  that  the  court  may  instruct  the  jury 
that  the  fact  exists,441  and,  as  has  been  seen,  the  jury  are 
bound  by  the  instruction.442 

§  130.    Argument  of  counsel. 

It  follows,  also,  that,  in  so  far  as  facts  of  which  judicial 
notice  is  taken  relate  to  matter  within  the  province  of  the 
jury,443  they  may  be  commented  .on  by  counsel  in  the  argu- 
ment to  the  jury.444  Thus,  counsel  may,  in  the  course  of  the 

43»Thayer,  Prel.  Treat.  Ev.  281;  Y.  B.  7  Edw.  III.  4,  7;  Mackelley's 
Case,  9  Coke,  65a,  67;  Id.,  9  Coke,  62;  Neville  v.  Kenney,  125  Ala.  149. 
See,  however,  preceding  note  as  to  pleading  and  findings. 

"OGormley  v.  Bunyan,  138  U.  S.  623,  635;  People  v.  Ghee  Kee,  61 
Cal.  404;  Jackson  County  v.  State,  147  Ind.  476,  497;  Downing  v.  Mil- 
tonvale,  36  Kan.  740,  741;  Case  v.  Perew,  46  Hun  (N.  Y.)  57.  See 
note  18,  supra,  for  more  authorities. 

"iThayer,  Prel.  Treat.  Ev.  302;  King  v.  Sutton,.4  Maule  &  S.  532, 
542;  Adler  v.  State,  55  Ala.  16;  Foley  v.  Cal.  Horseshoe  Co.,  115  Cal. 
184,  56  A.  S.  R.  87;  Swales  v.  Grubbs,  126  Ind.  106;  State  v.  Means,  95 
Me.  364,  85  A.  S.  R.  421;  Pearce  v.  Langfit,  101  Pa.  507,  47  A.  R.  737. 
See  People  v.  Constantino,  153  N.  Y.  24. 

«2  See  §  124,  supra. 

4*3  Sullivan  v.  Royer,  72  Cal.  248,  1  A.  S.  R.  51;  Richmond's  Appeal, 
69  Conn.  226,  21  A.  S.  R.  85. 

444Thayer,  Prel.  Treat.  Ev.  302;  Jackson  v.  Com.,  100  Ky.  239,  66 
A.  S.  R.  336;  State  v.  Marsh,  70  Vt.  288.  If  counsel,  in  the  argument, 
misstates  a  matter  of  which  the  court  takes  judicial  cognizance,  th« 


454  LAW   OF   EVIDENCE.  §   131 

argument,  show  by  reference  to  the  almanac,  even  though 
none  has  been  introduced  in  evidence,  the  falsity  of  testi- 
mony that  a  certain  day  of  the  month  in  a  given  year  fell 
on  a  specified  day  of  the  week.445 

ART.   IX.     IMPEACHMENT   OF  JUDICIAL   KNOWLEDGE. 

§  131.  The  dispute  in  reference  to  judicial  notice  usually 
lies,  not  in  the  fact's  existence,  but  in  whether  or  not  the 
party  wishing  to  take  advantage  of  the  fact  must  establish 
it  by  evidence;  that  is,  whether  the  fact  is  a  proper  subject 
of  judicial  notice.  But  this  is  not  always  the  case;  it  often 
happens  that  the  truth  of  the  fact  is  disputed.  In  this  event 
a  preliminary  question  presents  itself  to  the  court,  viz. :  As- 
suming that  the  matter  is  a  proper  subject  of  judicial  notice, 
what  is  the  truth  of  it?  Theoretically,  the  judge  is  presumed 
to  know  the  truth,  but,  it  is  needless  to  say,  his  knowledge 
is  often  inadequate.  He  may  accordingly,  as  we  have  seen,446 
inform  himself  by  reference  to  books  or  other  proper  source, 
with  or  without  the  aid  of  counsel,  as  he  may  choose.  If 
this  preliminary  investigation  is  conducted  in  court  with 
the  aid  of  counsel,  it  usually  proceeds  as  a  part  of  the  trial 
proper,  in  the  course  of  which  the  books  or  other  sources  of 
information  are  introduced  in  evidence.447  When  the  judge 
deems  himself  sufficiently  well  informed,  he  closes  the  inves- 

error  should  be  corrected  by  instruction.  Proctor  v.  De  Camp,  83  Ind. 
559;  State  v.  O'Keefe,  23  Nev.  127,  62  A.  S.  R.  768. 

445  Wilson  v.  Van  Leer,  127  Pa.  371,  14  A.  S.  R.  854. 

4*6  See  §  123,  supra. 

447  Thus,  to  introduce  these  things  in  evidence  is  an  unnecessary 
course,  since  the  court  has  full  power  to  examine  them  without  it  (see 
§§  123,  128,  supra).  At  the  same  time,  it  is  a  harmless  course  (see 
cases  cited  in  notes  18,  440,  supra),  provided  that  it  be  borne  in  mind 
that  this  preliminary  investigation  is  no  part  of  the  trial  proper  (see 
§  124,  supra). 


§   131  IMPEACHMENT    OF    JUDICIAL    KNOWLEDGE.  455 

tigation,  and  exercises  his  function  of  taking  judicial  notice 
of  the  truth  of  the  matter  in  dispute.  Having  done  this,  the 
trial  proper  proceeds. 

Now,  when  the  court  has  assumed  judicial  knowledge  of 
a  fact,  to  introduce  evidence  of  that  fact  is  a  work  of  super- 
erogation.448 But  the  question  has  been  put,  May  a  party 
dispute  the  truth  of  a  matter  that  forms  a  proper  subject  of 
judicial  notice?  In  theory,  and  generally  in  actual  practice, 
this  question  is  addressed  to  the  preliminary  investigation  just 
discussed.  If  a  party  has  anything  to  say  as  to  the  truth  of 
the  fact,  the  time  to  speak  is  when  the  question  of  taking 
judicial  notice  of  the  fact  is  first  broached.  Accordingly,  in 
this  preliminary  inquiry,  counsel  often  offer  evidence  (in 
the  broad  sense  of  the  term)  which  has  a  bearing  on  the 
question  in  hand.  The  extent  to  which  this  may  be  done  lies 
in  the  discretion  of  the  judge,  who  may  be  supposed  to  know 
when  he  is  sufficiently  well  informed.  If  the  judge  deems 
himself  secure  in  his  own  knowledge  when  the  question  first 
arises,  he  may  dispense  with  the  preliminary  investigation 
as  a  whole,  and  decide  the  matter  at  once.  And  even  where 
he  desires  information,  yet  he  is  not  bound  to  call  on  counsel 
for  it,  nor  have  counsel  a  right  to  insist  on  being  let  into  the 
investigation.449  It  follows  from  what  has  been  said  that,  in 
theory  at  least,  a  fact  which  forms  a  proper  subject  of  judicial 
notice  may  not  be  disputed  by  evidence  ^in  the  trial  proper.450 

«8  See  §  128,  supra, 

449  The  court  may  resort  to  any  source  of  information  which  he 
deems  proper.  See  §  123,  supra. 

4BoShor%  v.  Wilson,  9  Clark  &  F.  355,  569;  White  v.  Rankin,  90  Ala. 
541;  Stanley  v.  McElrath  (Cal.)  22  Pac.  673;  Luce  v.  Dorchester  M. 
F.  Ins.  Co.,  105  Mass.  297,  7  A.  R.  522;  Com.  v.  Marzynski,  149  Mass. 
68,  72;  Attorney  General  v.  Dublin,  38  N.  H.  459,  514.  See  State  v. 
Main,  69  Conn.  123,  136,  61  A.  S.  R.  30,  39.  And  see  cases  cited  in 
note  438,  supra.  Contra,  Thayer.  Prel.  Treat.  Ev.  308.  Neither  may 


456  LAW  OF  EVIDENCE.  §   132 

Whether  or  not  a  fact  of  which  judicial  notice  is  proposed 
to  be  taken  may  be  impeached  in  the  preliminary  investiga- 
tion rests,  as  we  have  seen,  in  the  discretion  of  the  court.  The 
existence  of  some  facts  is  so  obvious  that  to  permit  an  attempt, 
to  disprove  them  would  be  an  absurd  waste  of  time,  as  that 
firearms  are  not  drugs  or  medicines.  Other  facts  are  not  so 
obvious,  as  that  a  seal  purporting  to  be  the  great  seal  of  a 
state  is  such  in  fact.  In  the  former  instance  no  court  would 
allow  a  party  to  impeach  the  fact.451  In  the  latter  case,  how- 
ever, evidence  that  the  seal  is  not  genuine  would  unquestion- 
ably be  admitted.452 

ART.  X.     JUDICIAL  NOTICE  ON  APPEAL. 

§  132.  The  failure  or  the  refusal  of  the  trial  court  to  take 
judicial  notice  of  a  fact  does  not  preclude  the  appellate  court 
from  doing  so.  The  court  of  review  will  take  notice  of  and 
give  proper  effect  to  anything  that  might  have  been  judicially 
noticed  at  the  trial;453  and  this  is  so,  even  though  the  matter 
was  not  brought  to  the  trial  court 's  attention.454  For  example, 
the  court  'of  review  will  take  official  notice  of  the  public  stat- 

such  a  fact  be  disputed  on  the  hearing  of  a  motion  for  a  new  trial. 
People  v.  Mayes,  113  Cal.  618. 

45i  Com.  v.  Marzynski,  149  Mass.  68,  72. 

452Thayer,  Prel.  Treat.  Ev.  308. 

453  Jones  v.  Merchants'  Nat.  Bank,  33  U.  S.  App.  703,  35  L.  R.  A. 
698;   People  v.  Mayes,  113  Cal.  618,  626;  Rogers  v.  Cady,  104  Cal.  288, 
290,  43  A.  S.  R.  100,  102.     It  would  seem  to  follow  from  this  that  the 
lower  court's  refusal  to  admit  evidence  of  a  fact  of  which  it  should 
have  taken,  but  did  not  take,  judicial  notice,  would  be  harmless  error. 
Contra,  it  seems,  White  v.  Phoenix  Ins.  Co.,  83  Me.  279,  281. 

454  Brown  v.  Piper,  91  U.  S.  37,  Thayer,  Gas.  Ev.  17,  20;  Hunter  v. 
New  York,  0.  &  W.  R.  Co.,  116  N.  Y.  615.     The  rule  is  otherwise  where 
the  appellate  court  does  not  have  the  findings  before  it  for  review, 
and  so  have  power  to  pass  upon  the  facts.     Wood  v.  North  Western 
2ns.  Co.,  46  N.  Y.  421. 


§   132  JUDICIAL    NOTICE    ON    APPEAL.  457 

utes  of  the  state  wherein  the  trial  occurred,  even  though  they 
were  not  mentioned  in  the  court  below.455 

The  reviewing  court  will  take  judicial  notice  of  anything 
that  the  court  of  first  instance  must  have  judicially  noticed, 
even  though  it  be  a  matter  of  which  courts  of  general  juris- 
diction do  not  have  official  knowledge.  Thus,  while  courts 
do  not,  as  a  rule,  take  judicial  notice  of  municipal  ordinances, 
yet,  courts  of  the  municipality  being  bound  to  do  so,  the 
same  rule  will  govern  the  tribunal  that  reviews  the  judgment 
of  the  municipal  court.458 

A  court  of  review  will  not  take  official  notice  of  matters  of 
which  the  court  whose  judgment  is  being  reviewed  could  not 
have  taken  notice.457  For  instance,  although  the  federal  courts 
will,  as  a  rule,  assume  knowledge  of  the  laws  of  the  various 
states  of  the  Union,  yet  the  supreme  court  of  the  United 
States,  in  reviewing  the  judgment  of  a  state  court,  will  not 
take  notice  of  the  law  of  a  sister  state,  since  the  state  court 
could  not  have  taken  cognizance  of  it.458  However,  if  a  public 
statute  affecting  the  rights  of  the  parties  is  enacted  or  repealed 
pending  an  appeal,  the  appellate  court  will  take  notice  there- 
of, and  give  judgment  accordingly.459 

The  presumption  is,  on  appeal,  that  the  knowledge  of  a  fact 
as  judicially  assumed  by  the  trial  court  is  correct.460 

In  reviewing  a  cause  brought  before  it  by  writ  of  error  or 

455  Fourth  Nat.  Bank  v.  Francklyn,  120  U.  S.  747,  751. 

486  Solomon  v.  Hughes,  24  Kan.  211;  Steenerson  v.  Great  Northern  R. 
Co.,  69  Minn.  353,  377  (semble). 

457  Thomson-Houston  Elec.  Co.  v.  Palmer,  52  Minn.  174,  178. 

458Hanley  v.  Donoghue,  116  U.  S.  1,  Thayer,  Gas.  Ev.  26;  Lloyd  v. 
Matthews,  155  U.  S.  222;  Sammis  v.  Wightman,  31  Fla.  10  (semble). 
It  is  otherwise  if  the  state  court  took  notice  of  the  law  of  a  sister 
state.  Renaud  v.  Abbott,  116  U.  S.  277. 

459  Vance  v.  Rankin,  194  111.  625,  88  A.  S.  R.  173;  Wikel  v.  Jackson 
County,  120  N.  C.  451. 

460  People  v.  Mayes,  113  Cal.  618. 


458  LAW  OP  EVIDENCE.  §   132 

by  appeal,  the  court  of  last  resort  cannot  take  official  notice 
of  the  record  of  the  cause  in  the  lower  court.  It  must  be 
presented  by  transcript.461  An  appellate  court  will  take  judi- 
cial cognizance  of  its  own  record  in  the  same  cause  on  a  former 
appeal.462  It  will  not,  however,  take  official  notice  of  other 
cases,  though  in  the  same  court,  unless  they  are  made  a  part  of 
the  record  in  the  case  in  hand.463 

It  has  already  been  seen  that  judicial  notice  is  not  taken  of 
the  rules  of  inferior  courts,464  nor  of  members  o'f  the  bar  of 
an  inferior  court,465  though  the  judges  of  courts  of  general 
jurisdiction  are  noticed  by  the  appellate  courts,466  and  also 
the  nature  of  the  jurisdiction  and  the  terms  of  the  court 
whose  judgment  is  under  review.467 

That  the  judges  of  appellate  tribunals  cannot  make  use  of 
their  private  knowledge  of  facts  bearing  on  the  case  before 
the  court  has  been  shown  in  another  connection.468 

461  Bush  v.  Tecumseh  Nat.  Bank,  64  Neb.  451. 

462  Dawson  v.  Dawson,  29  Mo.  App.  521;   Brucker  v.  State,  19  Wis. 
539. 

463  Enix  v.  Miller,  54  Iowa,  551;   Monticello  Nat.  Bank  v.  Bryant,  13 
Bush  (Ky.)  419;   Banks  v.  Burnam,  61  Mo.  76;  Maxwell  v.  Griffith,  20 
Wash.   106.     The  court  cannot  judicially  notice  whether  the  subject- 
matter  of  two  separate  suits  is  the  same.     Loomis  v.  Griffin,  78  Iowa, 
482.     The  appellate  court  cannot  take  notice  of  the  record  of  another 
case  in  the  lower  court.     People  v.  De  la  Guerra,  24  Cal.  73,  78. 

464  See  §  99  (c),  supra. 

465  See  §  99  (d),  supra. 

466  See  §  99 (d),  supra. 

467  See  §  99 (a),  supra. 

468  See  §  125,  supra. 


CHAPTER  HI. 

JUDICIAL  ADMISSIONS. 

ABT.  I.  GENERAL  CONSIDERATIONS. 
ART.  II.  EFFECT  IN  FIRST  TRIAL. 
ART.  III.  EFFECT  IN  SECOND  TRIAL. 

ART.  IV.  CONSTRUCTION  OF  ADMISSION — INTRODUCTION  OF  ENTIRE  WRIT- 
ING. 

ABT.  V.  WITHDRAWAL  OF  ADMISSION. 

ART.  I.     GENERAL  CONSIDERATIONS. 

§  133.  Admissions  are  of  two  sorts:  (1)  Those  deliberately 
and  formally  made,  usually  for  some  purpose  connected  with 
litigation,  and  (2)  those  otherwise  made.  The  latter  may 
be  either  express  or  implied  from  conduct;  and  this  class 
of  admissions  includes  confessions  of  persons  accused  of  crime. 

Admissions  of  the  first  sort  are  known  as  formal,  ceremonial, 
solemn,  or  judicial  admissions.  With  regard  to  their  effect, 
they  fall  into  two  classes,  according  to  the  proceeding  in 
which  they  are  sought  to  be  used.  If  made  for  the  purpose 
of  a  trial,  they  are  generally  binding  on  the  party  making 
them  for  the  purpose  of  that  trial,  and  the  opposing  party  is 
relieved  of  the  necessity  otherwise  resting  on  him  of  adducing 
evidence  of  the  existence  of  the  fact  admitted.  In  an  inde- 
pendent proceeding,  however,  they  do  not  have  this  conclusive 
effect.  They  do  not  absolutely  dispense  with  the  necessity 
of  adducing  evidence  of  the  fact  admitted,  but  are  merely  ad- 
missible as  evidence  of  that  fact,  as  tending  to  show  its  prob- 
able existence.  In  this  aspect  they  have  the  same  effect  as 


460  LAW   OF   EVIDENCE.  §   134 

nonjudicial  or  informal  admissions  generally.     They  do  not 
dispense  with  evidence;  they  merely  constitute  evidence. 

A  judicial  admission  may  therefore  affect  the  necessity  of 
adducing  evidence  or  it  may  in  itself  constitute  evidence. 
With  their  latter  phase  we  are  not  presently  concerned,  since 
this  division  of  the  subject  of  evidence  is  devoted,  not  to  rules 
of  evidence  in  the  strict  sense  of  that  term,  but  to  rules  fixing 
or  dispensing  with  the  necessity  of  adducing  evidence. 

ART.   II.     EFFECT   IN   FIRST  TRIAL. 

Admissions  in  proceedings  preliminary  to  trial,  §  134.  • 
Admissions  in  pleadings,  §  135. 

(a)  Admissions  as  defining  the  issues. 

(b)  Admissions  as  evidence. 

Admissions  in  agreed  facts  and  in  open  court,  §  136. 
Admissions  by  counsel,  §  137. 
Demurrer  to  evidence,  §  138. 
Payment  into  court,  §  139. 

§  134.    Admissions  in  proceedings  preliminary  to  trial. 

Affidavits  taken  in  proceedings  preliminary  to  trial  may 
be  used  in  evidence  in  the  trial  as  admissions  of  the  party  mak- 
ing them.1  And  the  same  is  true  of  a  party's  deposition  which, 
because  'of  some  irregularity  in  taking  it,  or  because  of  the  par- 
ty's presence  at  the  trial,  is  not  admissible  as  a  substitute  for 
oral  testimony.2  So,  an  admission  in  a  petition  to  remove  a 
cause  from  a  state  to  a  federal  court  is  conclusive  on  the  peti- 
tioner in  subsequent  proceedings  in  the  same  cause  in  the  fed- 
eral court.3 

1  Cameron  v.  Lightfoot,  2  W.  Bl.   1190;    Nat.  S.  S.  Co.  v.  Tugman, 
143  U.  S.  28;  Baker  v.  Hess,  53  111.  App.  473.     The  same  is  true  of  the 
affidavit  of  a  third  person,  where  it  is  used  by  the  party  in  a  prelim- 
inary proceeding.    Wabash  &  E.  Canal  v.  Bledsoe,  5  Ind.  133. 

2  State  v.  Chatham  Nat.  Bank,  80  Mo.  626;  Phenix  M.  L.  Ins.  Co.  v. 
Clark,  58  N.  H.  164;  Carr  v.  Griffin,  44  N.  H.  510;  Parker  v.  Chancellor, 
78  Tex.  524;  Edwards  v.  Norton,  55  Tex.  405. 


§    135  EFFECT  IN  FIRST  TRIAL.  461 

§  135.    Admissions  in  pleadings. 

A  distinction  is  to  be  noted  between  admissions  in  pleadings 
considered  as  defining  the  issues  to  be  tried,  and,  on  the 
other  hand,  as  evidence  for  the  jury.  In  the  first  of  these  as- 
pects, an  admission  in  pleading  of  a  material  allegation  is  ab- 
solutely conclusive  so  long  as  it  stands  upon  the  record  and 
is  untraversed,  but  may  be  entirely  got  rid  of  by  amendment. 
In  the  other  aspect,  considered  as  evidence,  it  is  not  generally 
conclusive,  but  cannot  be  got  rid  of  by  amendment.4 

In  the  first  of  these  aspects  the  question  whether  there  is 
an  admission  and  the  question  of  its  effect  are  always  ques- 
tions for  the  court;  and  it  is  error  for  the  court  to  give  the 
pleading  to  the  jury  to  enable  them  to  define  the  issue  upon 
which  they  are  to  pass.5  In  the  second  aspect,  when  the 
pleading  is  offered  as  evidence,  its  effect  as  an  admission  is 
wholly  a  question  for  the  jury,  as  would  be  the  case  with  any 
other  writing  proved  to  have  come  from  the  same  party  and 
put  in  evidence  as  his  admission;  and  after  it  has  been  read 
in  evidence  the  court  may,  under  the  rules  applicable  to  giv- 
ing documents  to  the  jury,  let  the  jury  take  out  the  pleading, 
and  give  to  the  admission  such  weight  and  effect  as  they  deem 
it  entitled  to.6 

It  follows  from  these  distinctions  that  for  the  first-men- 
tioned purpose  of  defining  the  issues  the  pleadings  are  before 
the  court  as  part  of  its  own  record  without  offering  them  in 
evidence,7  and  that  for  the  second  purpose  they  are  not  before 

aLumley  v.  Wabash  R.  Co.,  71  Fed.  21.  See  Nat.  S.  S.  Co.  v.  Tug- 
man,  143  U.  S.  28. 

<  Note,  23  Abb.  N.  C.  (N.  Y.)  394;  Barton  v.  Laws,  4  Colo.  App.  212. 
See,  as  to  admission  generally,  6  Current  Law,  1063. 

B  Porter  v.  Knight,  63  Iowa,  365;  Browne  v.  Stecher  L.  Co.,  24  App. 
Div.  (N.  Y.)  480. 

•  Note,  23  Abb.  N.  C.   (N.  Y.)   394. 

T  Field  v.  Surpless,  83  App.  Div.  (N.  Y.)  268. 


462  LAW   OF   EVIDENCE.  §   135a 

the  jury  nor  proper  to  be  considered  by  them  unless  formally 
offered  in  evidence  like  any  other  document  and  received  as 
evidence  by  the  court.8 

Admissions  in  pleadings  are  of  two  kinds, — express  and 
implied.  The  one  occurs  where  an  allegation  in  a  pleading  is 
in  terms  admitted  to  be  true  by  an  averment  in  a  subsequent 
pleading;  the  other  occurs  where  there  is  a  failure  to  deny  a 
material  allegation  in  a  preceding  pleading. 

(a)  Admissions  as  defining  the  issues.  An  admission  made 
in  the  course  of  pleading,  whether  expressly  or  by  omitting 
to  deny  an  allegation  of  the  adversary,  is  taken  as  conclusive 
for  all  purposes  of  the  case,9  whether  the  facts  relate  to  the 

s  Note,  23  Abb.  N.  C.  (N.  Y.)   394. 

QBingham  v.  Stanley,  2  Q.  B.  117,  127;  Balloch  v.  Hooper,  146  U.  S. 
363,  367;  Cent.  R.  Co.  v.  Stoermer,  51  Fed.  518;  Hendy  Mach.  Works  v. 
Pac.  C.  Const.  Co.,  99  Gal.  421;  Parker  v.  Lanier,  82  Ga.  216;  Adams 
Exp.  Co.  v.  Carnahan,  29  Ind.  App.  606,  94  A.  S.  R.  279,  281;  Hewitt  v. 
Morgan,  88  Iowa,  468;  Miller  v.  James,  86  Iowa,  242;  Knoop  v.  Kelsey, 
102  Mo.  291,  22  A.  S.  R.  777;  Newell  v.  Meyendorff,  9  Mont.  254,  18 
A.  S.  R.  738,  742;  Foley  v.  Holtry,  41  Neb.  563;  Dunham  v.  Cudlipp, 
94  N.  Y.  129;  Miller  v.  Asheville,  112  N.  C.  759;  Walker  v.  Wooster's 
Adm'r,  61  Vt.  403;  Nat.  M.  B.  &  L.  Ass'n  v.  Ashworth,  91  Va.  706; 
Stearns  v.  Richmond,  88  Va.  992,  29  A.  S.  R.  758;  Nugent  v.  Powell,  4 
Wyo.  173,  62  A.  S.  R.  17. 

The  same  rule  applies  to  bills  in  equity.  Jeffers  v.  Jeffers,  139  111. 
368. 

A  pleader  is  not  thus  concluded  by  an  allegation  of  a  false  legal  con- 
clusion deduced  from  the  facts  alleged  in  the  same  pleading.  Salem 
v.  Lane,  189  111.  593,  82  A.  S.  R.  481.  An  admission  in  an  answer  as  to 
the  character  of  the  instrument  sued  on,  of  which  profert  is  made  in 
the  answer,  is  not  conclusive  as  to  the  character  of  the  instrument. 
St.  Joseph  &  St.  L.  R.  Co.  v.  St.  Louis,  I.  M.  &  S.  R.  Co.,  135  Mo.  173, 
33  L.  R.  A.  607. 

An  allegation  in  an  answer  is  not  conclusive  as  an  admission  except 
where  it  admits  something  alleged  in  the  complaint.  Ferris  v.  Hard, 
135  N.  Y.  354. 

It  has  been  held  that  an  admission  in  pleading  is  not  conclusive 
for  all  purposes  of  the  cause,  but  only  for  all  purposes  regarding  the 


£    135a  EFFECT  IN  FIRST  TRIAL.  463 

parties  or  to  third  persons,10  provided  that  the  allegation  is 
material.11  Consequently,  a  party  making  an  admission  in 
a  pleading  is  precluded  from  offering  evidence  to  contradict 
it;12  and,  in  so  far  as  the  opposing  party  is  concerned,  the 
admission  dispenses  with  the  necessity  of  proving  the  fact 
admitted.13 

Effect  of  failure  to  deny  allegation.    A  party  admits 

the  truth  of  all  traversable  allegations  that  he  does  not  deny  ;14 
and,  generally  speaking,  the  denial  must  be  specific.  Where 

issue  arising  from  that  particular  pleading.  Robins  v.  Maidstone,  4 
Q.  B.  811,  815. 

It  is  only  for  the  purposes  of  the  trial  that  the  allegations  of  a 
pleading  are  conclusive.  Consequently,  a  party  who  denies  title  in 
himself  is  not  thereby  estopped,  after  a  verdict  negativing  that  de- 
nial, from  claiming  an  exemption  in  the  property  as  owner.  Etheridge 
v.  Davis,  111  N.  C.  293. 

Though  pleadings  are  not  authorized  in  justice  court,  yet  a  pleading 
filed  there  may  be  taken  on  appeal  as  a  formal  admission  of  the  party 
filing  it.  Warder  v.  Willyard,  46  Minn.  531,  24  A.  S.  R.  250. 

loBingham  v.  Stanley,  2  Q.  B.  117,  127. 

11  Bingham  v.  Stanley,  2  Q.  B.  117,  127. 

i2Wilcoxson  v.  Burton,  27  Cal.  228,  87  A.  D.  66;  Fleischmann  v. 
Stern,  90  N.  Y.  110;  Van  Dyke  v.  Maguire,  57  N.  Y.  429. 

This  rule  is  not  waived  by  the  adversary's  introducing  evidence  in 
support  of  the  allegation  admitted.  'Paige  v.  Willet,  38  N.  Y.  28;  Potter 
v.  Smith,  70  N.  Y.  299.  The  rule  of  the  text  prevails  in  equity  also. 
Fletcher,  Eq.  Plead.  &  Pr.  §  640. 

is  First  Nat.  Bank  v.  Ragsdale,  158  Mo.  668,  81  A.  S.  R.  332;  Robert- 
son v.  Sayre,  134  N.  Y/97,  30  A.  S.  R.  627,  628;  Aultman  &  T.  Co.  v. 
Gunderson,  6  S.  D.  226,  55  A.  S.  R.  837;  Sheehy  v.  Blake,  77  Wis.  394, 
9  L.  R.  A.  564.  The  rule  is  the  same  in  equity.  Fletcher,  Eq.  Plead. 
&  Pr.  §  640. 

i*  Hudson  v.  Jones,  1  Salk.  90;  Albany  Furniture  Co.  v.  Merchants' 
Nat.  Bank,  17  Ind.  App.  531,  60  A.  S.  R.  178;  Lorscher  v.  Supreme 
Lodge,  72  Mich.  316,  2  L.  R.  A.  206;  Gunn's  Adm'r  v.  Todd,  21  Mo. 
303,  64  A.  D.  231.  This  is  true  in  equity,  also.  If  the  defendant  fails 
to  answer  the  bill,  the  complainant  may  obtain  a  decree  pro  confesso. 
If  the  complainant  fails  to  file  a  replication  to  the  answer,  its  allega- 
tions are  taken  as  true.  Fletcher,  Eq.  Plead.  &  Pr.  §§  140,  636. 


464  LAW   OF    EVIDENCE.  §   135a 

material  allegations  in  a  complaint  are  not  directly  denied, 
a  statement  in  the  answer  of  other  facts  inconsistent  with 
them  will  not  be  construed  as  a  denial,  and  so  prevent  them 
from  being  taken  as  true.15 

The  modern  codes  of  procedure  have  introduced  some  qual- 
ifications of  this  rule.  If  an  answer  contains  new  matter  not 
pleaded  by  way  of  counterclaim,  or  if  a  reply  contains  new 
matter,  this  is  taken  on  the  trial  as  controverted  without  a 
formal  denial.16  And  in  some  states  the  rule  in  equity  is  that 
a  material  allegation  of  a  bill  which  is  neither  admitted  nor 
denied  by  the  answer  is  to  be  taken  as  controverted,  though 
the  authorities  are  not  in  accord  as  to  this.17 

An  allegation  will  not  be  taken  as  true  from  the  failure  to 
controvert  it  unless  it  is  material  and  essential  to  the  case  of 
the  party  who  makes  it.18 

—  Several  answers.     Denials  in  one  answer  are  not  af- 
fected by  other  answers  containing  admissions.     An  admis- 
sion in  one  of  several  answers  will  not  conclude  the  defendant 
from  disproving  the  fact  in  question  if  it  is  denied  in  one  of 
the  other  answers.19 

—  Effect  of  amendment.     The  effect  of  an  express  or  im- 

15  Fleischmann  v.  Stern,  90  N.  Y.  110. 

is  Higley  v.  Burlington,  C.  R.  &  N.  R.  Co.,  99  Iowa,  503,  61  A.  S.  R. 
250;  Mills  County  Nat.  Bank  v.  Perry,  72  Iowa,  15,  2  A.  S.  R.  228; 
Powers  v.  Kueckhoff,  41  Mo.  425,  97  A.  D.  281. 

IT  Fletcher,  Eq.  Plead.  &  Pr.  §  655. 

is  Sands  v.  St.  John,  36  Barb.  (N.  Y.)  628,  23  How.  Pr.  140;  Oechs  v. 
Cook,  10  N.  Y.  Super.  Ct.  (3  Duer)  161.  Unnecessary  allegations  in  a 
complaint  are  admitted,  however,  where  they  are  made  material  by 
new  matter  in  an  answer  which  does  not  controvert  them.  Hopkins 
v.  Ward,  67  Barb.  (N.  Y.)  452. 

is  Miles  v.  Woodward,  115  Cal.  308;  Palmer  v.  Poor,  121  Ind.  135,  6 
L.  R.  A.  469;  Treadway  v.  S.  C.  &  St.  P.  R.  Co.,  40  Iowa,  526;  Lyons  v. 
Ward,  124  Mass.  364;  Swift  v.  Kingsley,  24  Barb.  (N.  Y.)  541. 

This  is  so  by  statute  in  Massachusetts.  Baldwin  v.  Gregg,  13  Mete. 
(Mass.)  253. 


§   135a  EFFECT  IN  FIRST  TRIAL.  465 

plied  admission  may,  for  the  first-mentioned  purpose  of  de- 
fining the  issues,  be  entirely  overcome  by  amendment  of  the 
pleading  containing  it,20  or  by  the  abandonment  of  the  plead- 
ing before  trial  without  objection  from  the  adverse  party.21 
Pleas  in  abatement.  An  admission  in  a  plea  in  abate- 
ment is  not  binding  after  the  plea  has  been  overruled  and 
an  answer  to  the  merits  has  been  interposed.22 

—  Demurrers.  A  demurrer  admits  the  facts  alleged  in 
the  pleading  demurred  to,23  if  well  pleaded,24  for  the  purpose 
of  having  the  court  pass  on  their  legal  sufficiency,25  and  for 
that  purpose  only.28  Consequently,  if  it  is  overruled,  and  the 

20 Lincoln  Nat.  Bank  v.  Butler,  14  Misc.  (N.  Y.)  464,  72  N.  Y.  St. 
Rep.  261;  Houghtaling  v.  Lloyd,  39  N.  Y.  St.  Rep.  580,  21  Civ.  Proc.  R. 
(Browne)  56. 

21  Mahoney  v.  Butte  Hardware  Co.,  19  Mont.  377. 

22  Walters  v.  Parker  (Tex.)  19  S.  W.  1022. 

23  Supply  Ditch  Co.  v.  Elliott,  10  Colo.  327,  3  A.  S.  R.  586;   Munger 
v.  Baldridge,  41  Kan.  236,  13  A.  S.  R.  273;   Belknap  v.  Ball,  83  Mich. 
583,  21  A.  S.  R.  622;  Roberson  v.  Rochester  Folding  Box  Co.,  171  N.  Y. 
538,  89  A.  S.  R.  828;  Douglas  v.  Coonley,  156  N.  Y.  521,  66  A.  S.  R.  580; 
Tarver  v.  Garlington,  27  S.  C.  107,  13  A.  S.  R.  628. 

2*  Manning  v.  Pippen,  86  Ala.  357,  11  A.  S.  R.  46;  Coxe  v.  Gulick,  10 
N.  J.  Law,  328. 

Statements  of  conclusions,  either  of  fact  or  of  law,  are  not  admitted 
by  a  demurrer.  McCreery  v.  Berney  Nat.  Bank,  116  Ala.  224,  67  A.  S. 
R.  105;  Branham  v.  San  Jose,  24  Cal.  585;  Clark  v.  Mut.  R.  F.  L.  Ass'n, 
14  App.  D.  C.  154,  43  L.  R.  A.  390;  McPhail  v.  People,  160  111.  77,  52 
A.  S.  R.  306;  Burlington,  C.  ,R.  &  N.  R.  Co.  v.  Dey,  82  Iowa,  312,  31 
A.  S.  R.  477;  People's  M.  Assur.  Fund  v.  Boesse,  92  Ky.  290;  American 
Waterworks  Co.  v.  State,  46  Neb.  194,  50  A.  S.  R.  610;  Greeff  v.  Equi- 
table L.  Assur.  Soc.,  160  N.  Y.  19,  73  A.  S.  R.  659;  Longshore  Print 
Co.  v.  Howell,  26  Or.  527,  46  A.  S.  R.  640;  State  v.  Edgerton  Dist. 
Board,  76  Wis.  177,  20  A.  S.  R.  41.  The  same  is  true  in  equity.  Ryan 
v.  McLane,  91  Md.  175,  50  L.  R.  A.  501. 

Facts  against  common  knowledge  are  not  admitted  by  a  demurrer. 
Southern  R.  Co.  v.  Covenia,  100  Ga.  46,  62  A.  S.  R.  312;  State  v.  Edger- 
ton Dist.  Board,  76  Wis.  177,*  20  A.  S.  R.  41. 

25  Bomar  v.  Means,  37  S.  C.  520,  34  A.  S.  R.  772. 

2«  Pease  v.  Phelps,  10  Conn.  62. 

Hammon,  Ev. — 30. 


466  LAW   OF   EVIDENCE.  §   135b 

demurrant  interposes  a  pleading  to  the  merits,  the  demurrer 
has  no  effect  against  him  in  the  trial  as  an  admission.27 

(b)  Admissions  as  evidence.  A  pleading  is  admissible  in 
the  same  action  against  the  pleader  as  an  admission  of  the  facts 
alleged  in  it.28  However,  admissions  in  a  declaration  may  be 
used  by  the  defendant  as  evidence  without  offering  the  decla- 
ration itself  in  evidence  or  otherwise  proving  the  admissions.29 

—  Several  answers.     A  plea  containing  an  admission  is 
admissible  against  the  pleader  in  the  trial  of  another  plea  in 
the  same  case.30 

—  Pleadings  of  coparty.     A  pleading  interposed  by  one 
party  only  is  not  admissible  in  evidence  as  an  admission  of  a 
coparty,31  unless  there  is  privity  between  the  two.32 

Comment  on  pleadings  by  counsel  in  argument.    In  the 

absence  of  statute  to  the  contrary,  counsel  may  in  their  argu- 
ment to  the  jury  comment  on  the  pleadings,  even  though  they 
have  not  been  introduced  in  evidence.33 

27  McKinzie  v.  Mathews,  59  Mo.  99.  See,  however,  Sprague  v.  N.  Y. 
&  N.  E.  R.  Co.,  68  Conn.  345,  37  L.  R.  A.  638. 

28Fite  v.  Black,  92  Ga.  363;  Ferris  v.  Hard,  135  N.  Y.  354,  361 
(semble). 

The  rule  applies  to  admissions  in  an  unsworn  answer  in  equity. 
Craft  v.  Schlag,  61  N.  J.  Eq.  567.  It  applies,  also,  to  bills  of  particu- 
lars. 'Lee  v.  Heath,  61  N.  J.  Law,  250.  And  also  to  affidavits  of  de- 
fense. Bowen  v.  De  Lattre,  6  Whart.  (Pa.)  430. 

The  rule  stated  in  the  text  has  been  abrogated  by  statute  in  Massa- 
chusetts. Phillips  v.  Smith,  110  Mass.  61. 

29  East  Tenn.,  V.  &  G.  R.  Co.  v.  Kane,  92  Ga.  187,  22  L.  R.  A.  315. 

so  Howard  v.  Glenn,  85  Ga.  238,  21  A.  S.  R.  156. 

31  Clark's  Ex'rs  v.  Van  Riemsdyk,  9  Cranch   (U.  S.)   153;   Blakeney 
v.  Ferguson,  14  Ark.  640;   Reese  v.  Reese,  41  Md.  554. 

32  Field  v.  Holland,  6  Cranch   (U.  S.)   8. 

ss  Field  v.  Surpless,  83  App.  Div.  (N.  Y.)  268;  Holmes  v.  Jones,  121 
N.  Y.  461;  Tisdale  v.  Delaware  &  H.  Canal  Co.,  116  N.  Y.  416. 

It  has  been  held,  however,  that  where  an  instruction  given  for  the 
jury's  guidance  makes  no  reference  to  the  pleadings,  so  that  the  jury 
are  not  required  to  examine  them,  counsel  for  plaintiff  will  not  be 


§    135b  EFFECT   IN   FIRST  TRIAL.  467 

—  Effect  of  striking  out,  withdrawal,  or  amendment  of 
pleading.  An  admission  in  a  pleading  is  admissible  in  evi- 
dence against  the  party  even  after  the  pleading  has  been 
stricken  out34  or  withdrawn,35  and  even  after  the  pleading 
has  been  amended  in  that  respect,36  subject,  however,  to  the 
right  of  the  pleader  to  show  that  the  admission  was  placed 
in  the  original  pleading  through  inadvertence  or  mistake.37 

permitted  to  read  the  declaration  to  the  jury  and  argue  that  its  alle- 
gations are  sustained  by  the  evidence.  Hitchins  v.  Frostburg,  68  Md. 
100,  6  A.  S.  R.  422. 

In  Massachusetts  no  pleading  can  be  used  or  commented  on  as  evi- 
dence in  the  trial  of  the  case  in  which  it  is  filed.  Phillips  v.  Smith, 
110  Mass.  61.  Thus,  the  plaintiff's  counsel  may  not  comment  on  the 
discrepancy  between  .  the  original  and  amended  answers,  and  argue 
from  it  that  the  defense  is  fictitious.  Taft  v.  Fiske,  140  Mass.  250, 
54  A.  R.  459.  And  see  Woodworth  v.  Thompson,  44  Neb.  311. 

a*  Admis'sions  in  an  answer  which  has  been  stricken  by  order  of 
court  are  admissible  against  the  pleader  where  the  order  to  strike  was 
irregular.  Fite  v.  Black,  92  Ga.  363. 

An  admission  which  has  been  stricken  from  a  pleading,  subject  to 
exception,  is  admissible  against  the  party  making  it.  Peckham  Iron 
Co.  v.  Harper,  41  Ohio  St.  100. 

Statements  in  a  special  plea  that  has  been  held  bad  on  demurrer 
are  not  evidence  for  the  plaintiff,  however,  in  a  trial  on  the  general 
issue.  Montgomery  v.  Richardson,  5  Car.  &  P.  247. 

33  Barton  v.  Laws,  4  Colo.  App.  212;  Daub  v.  Englebach,  109  111.  267; 
Baltimore  &  O.  &  C.  R.  Co.  v.  Evarts,  112  Ind.  533;  Boots  v.  Canine, 
94  Ind.  408;  Lindner  v..St.  Paul  F.  &  M.  Ins.  Co.,  93  Wis.  526.  Contra, 
Wheeler  v.  West,  71  Cal.  126;  Johnson  v.  Powers,  65  Cal.  179;  Baldwin 
v.  Gregg,  13  Mete.  (Mass.)  253  (statute). 

A  withdrawn  pleading  is  not  conclusive  on  the  pleader,  however. 
It  is  merely  evidence.  Barton  v.  Laws,  4  Colo.  App.  212. 

so  Soaps  v.  Eichberg,  42  111.  App.  375;  Ludwig  v.  Blackshere,  102 
Iowa,  366;  Juneau  v.  Stunkle,  40  Kan.  756;  Walser  v.  Wear,  141  Mo. 
443;  Adams  v.  Utley,  87  N.  C.  356;  Hall  v.  Woodward,  30  S.  C.  564; 
Kilpatrick-Koch  D.  G,  Co.  v.  Box,  13  Utah,  494.  See  McDonald  v. 
Humphries,  56  Ark.  63.  Contra,  Miles  v.  Woodward,  115  Cal.  308. 

The  original  pleading  is  not  conclusive  after  amendment.  It  is  only 
evidence.  Hall  v.  Woodward,  30  S.  C.  564. 

37  Ludwig  v.  Blackshere,  102  Iowa,  366. 


468  LAW   OF   EVIDENCE.  §   136 

After  a  pleading  has  been  amended,  however,  the  original 
pleading  has  no  effect  as  an  admission  unless  'offered  in  evi- 
dence.38 

§  136.    Admissions  in  agreed  facts  and  in  open  court. 

An  agreed  statement  of  facts  is  conclusive  in  the  same  action 
for  all  the  purposes  of  the  case;39  and  the  same  is  true  of  an 
admission  made  in  open  court.40 

If  a  fact  has  been  admitted,  it  rests  in  the  discretion  of  the 
trial  court  whether  the  opposite  party  shall  nevertheless  be 
allowed  to  prove  the  fact  by  evidence.41 

Where  a  pleading  is  not  sworn  to  by  a  party,  and  is  prepared  by  his 
attorney  under  a  misapprehension  "of  the  facts,  it  is  not,  after  an 
amended  pleading  has  been  filed  to  correct  the  mistake,  admissible  in 
evidence  against  the  pleader  as  an  admission  of  the  facts  mistakenly 
alleged  in  it.  Fletcher,  Eq.  Plead.  &  Pr.  §  640;  Wenegar  v.  Bolten- 
bach,  180  111.  222. 

ss  Leach  v.  Hill,  97  Iowa,  81;  Woodworth  v.  Thompson,  44  Neb.  311; 
Folger  v.  Boyinton,  67  Wis.  447.  Contra,  Smith  v.  Pelott,  63  Hun  (N. 
Y.)  632. 

39  Harvey  v.  Thorpe,  28  Ala.  250,  65  A.  D.  344;  Reich  v.  Cochran,  151 
N.  Y.  122,  56  A.  S.  R.  607,  611;  National  Mut.  Bldg.  &  L.  Ass'n  v.  Ash- 
worth,  91  Va.  706. 

An  agreed  statement  of  facts  admitted  by  the  parties  to  be  true  in 
open  court  is  binding,  though  not  signed.  Prestwood  v.  Watson,  111 
Ala.  604. 

However,  the  parties  cannot,  by  affirmation  and  admission,  raise  a 
speculative  question  for  decision.  Union  Coal  Co.  v.  La  Salle,  136  111. 
119,  12  L.  R.  A.  326.  Nor  can  a  judgment  that  a  statute  is  invalid  be 
based  on  an  admission.  State  v.  Aloe,  152  Mo.  466,  47  L.  R.  A.  393. 

40  Kansas  &  A.  V.  R.  Co.  v.  Fitzhugh,  61  Ark.  341,  54  A.  S.  R.  211; 
Thompson  v.  Thompson,  9  Ind.  323,  68  A.  D.  638,  647  (semble) ;  Fahey 
v.  State,  27  Tex.  App.  146,  11  A.  S.  R.  182. 

The  same  is  true  of  a  disclaimer.  Hansell  v.  Hansell,  44  La.  Ann. 
548. 

In  an  admiralty  case,  the  court  regarded  as  an  admission  in  the 
cause  a  communication  formally  made  to  the  court  by  counsel  for  a 
party  after  the  trial  had  closed.  The  Harry,  9  Ben.  524,  Fed.  Gas.  No. 
6,147. 


§   137  EFFECT  IN  FIRST  TRIAL.  469 

§  137.    Admissions  by  counsel. 

An  admission  by  an  attorney,  if  distinctly  and  formally 
made  with  reference  to  a  matter  relating  to  the  cause  of  action 
for  the  purpose  of  alleviating  the  stringency  of  some  rule  of 
practice  or  of  dispensing  with  formal  proof  of  some  fact  at 
the  trial,  is  binding  and  conclusive  on  the  client.42  To  bind 
the  client  the  admissions  must  be  distinct  and  formal,  and  made 
for  the  express  purpose  x>f  dispensing  with  formal  proof  of 
a  fact  at  the  trial.  Admissions  made  by  an  attorney  in  the 
course  of  a  mere  informal  conversation  or  discussion,  though 
they  relate  to  the  facts  in  controversy,  are  not  binding  on  the 
client.4'  As  to  whether  or  not  an  admission  made  by  counsel 
in  his  opening  statement  of  the  case  is  binding  on  the  client, 
there  seems  to  be  some  conflict  of  authority.44 

41  Dunning  v.  Maine  Cent.  R.  Co.,  91  Me.  87,  64  A.  S.  R.  208;  White- 
side  v.  Lowney,  171  Mass.  431;  Hobart  v.  Cook,  167  Mass.  55. 

42R0senbaum  v.  State,  33  Ala.  354;  Wilson  v.  Spring,  64  111.  14; 
Talbot  v.  McGee,  4  T.  B.  Mon.  (Ky.)  375,  377;  Marsh  v.  Mitchell,  26 
N.  J.  Eq.  497;  Garrett  v.  Hanshue,  53  Ohio  St.  482,  35  L.  R.  A.  321. 
See,  generally,  6  Current  Law,  1555. 

The  client  may  be  bound  by  admissions  of  the  attorney  in  a  letter 
to  a  third  person.  Holderness  v.  Baker,  44  N.  H.  414. 

As  a  rule,  verbal  admissions  of  counsel  bind  the  client.  Prestwood 
v.  Watson,  111  Ala.  604.  It  is  provided  otherwise  by  statute  in  Cali- 
fornia. Merritt  v.  Wilcox,  52  Cal.  238. 

Admissions  of  material  facts  cannot  be  made  by  counsel  for  the 
accused  in  criminal  cases.  Clayton  v.  State,  4  Tex.  App.  515.  Contra, 
Com.  v.  McMurray,  198  Pa.  51,  82  A.  S.  R.  787.  They  may  be  read  in 
evidence  against  him  if  made  with  his  consent,  however.  People  v. 
Garcia,  25  Cal.  531. 

48  Young  v.  Wright,  1  Camp.  139,  140;  Watson  v.  King,  3  C.  B.  608; 
Petch  v.  Lyon,  9  Q.  B.  147;  Rockwell  v.  Tayler,  41  Conn.  55;  Treadway 
v.  S.  C.  &  St.  P.  R.  Co.,  40  Iowa,  526;  McKeen  v.  Gammon,  33  Me.  187; 
Saunders  v.  McCarthy,  8  Allen  (Mass.)  42;  Angle  v.  Bilby,  25  Neb.  595; 
Underwood  v.  Hart,  23  Vt.  120.  See,  however,  Holt  v.  Squire,  Ryan  & 
M.  282;  Marshall  v.  Cliff,  4  Camp.  133. 

*4  In  the  following  cases  the  admission  was  binding:  Oscanyon  v. 
Arms  Co.,  103  U.  S.  261;  Pratt  v.  Conway,  148  Mo.  291,  71  A.  S.  R. 
602. 


470  LAW   OF   EVIDENCE.  g   138 

To  bind  the  client  the  admissions  must,  of  course,  have 
been  made  within  the  scope  of  the  attorney's  authority,45  and 
during  the  continuance  'of  the  agency;48  but  it  is  not  neces- 
sary that  suit  shall  have  been  brought.  An  admission  made 
by  an  attorney  who  has  been  retained  with  reference  to  a 
certain  matter  is  binding  on  the  client  in  that  respect,  even 
though  no  action  is  pending  at  the  time  it  is  made.47 

§  138.    Demurrer  to  evidence. 

For  the  purpose  of  determining  the  legal  sufficiency  of  the 
facts  to  justify  a  recovery,  a  demurrer  to  evidence  admits 
all  the  facts  which  the  evidence  adduced  by  the  demurrant's 
adversary  tends  to  prove.48 

A  contrary  view  was  taken  in  the  following  cases:  Jessup's  Estate, 
81  Cal.  408,  6  L.  R.  A.  594;  Lake  Erie  &  W.  R.  Co.  v.  Rooker,  13  Ind. 
App.  600;  Ferson  v.  Wilcox,  19  Minn.  449  (semble). 

45  Wenans  v.  Lindsey,  1  How.  (Miss.)  577. 

An  attorney  cannot  surrender  a  substantial  right  of  the  client  with- 
out his  consent.  Dickerson  v.  Hodges,  43  N.  J.  Eq.  45,  47. 

Admissions  by  a  managing  clerk  or  by  an  agent  of  the  attorney,  see 
Taylor  v.  Willans,  2  Barn.  &  Adol.  845;  Truslove  v.  Burton,  9  Moore, 
64;  Standage  v.  Creighton,  5  Car.  &  P.  406;  Power  v.  Kent,  1  Cow.  (N. 
Y.)  211. 

46Walden  v.  Bolton,  55  Mo.  405;  Janeway  v.  Skerritt,  30  N.  J. 
Law,  97. 

The  agency  cannot  be  established  by  admissions  of  the  attorney. 
Worley  v.  Hineman,  6  Ind.  App.  240,  257  (semble).  See,  also,  Wag- 
staff  v.  Wilson,  4  Barn.  &  Adol.  339. 

*7  Marshall  v.  Cliff,  4  Camp.  133.  And  see  Hefferman  v.  Burt,  7  Iowa, 
320,  71  A.  D.  445. 

48Fowle  v.  Alexandria,  11  Wheat.  (U.  S.)  320;  Pennsylvania  Co.  v. 
Stegemeier,  118  Ind.  305,  10  A.  S.  R.  136;  Golden  v.  Knowles,  120  Mass. 
336;  Nat.  Bank  of  Com.  v.  American  Exch.  Bank,  151  Mo.  320,  74  A. 
S.  R.  527;  Patton  v.  Bragg,  113  Mo.  595,  35  A.  S.  R.  730;  Hopkins  v. 
Nashville,  C.  &  St.  L.  R.  Co.,  96  Tenn.  409,  32  L.  R.  A.  354;  Richmond 
Ry.  &  El.  Co.  v.  Garthright,  92  Va.  627,  53  A.  S.  R.  839;  Jones  v.  Old 
Dominion  Cotton  Mills,  82  Va.  140,  3  A.  S.  R.  92;  Williamson  v.  New- 
port News  &  M.  V.  Co.,  34  W.  Va.  657,  26  A.  S.  R.  927;  7  Current  Law, 
1155. 


£  139  EFFECT  IN  FIRST  TRIAL.  471 

§  139.    Payment  into  court. 

If  money  is  paid  into  court  upon  a  declaration  containing 
but  one  cause  of  action,  which  is  specially  set  forth,  whether 
in  contract  or  in  tort,  it  operates  as  a  conclusive  admission  of 
every  fact  necessary  for  the  plaintiff  to  prove  in  order  to  main- 
tain his  action,  leaving  open  only  the  question  whether  he  is 
entitled  to  recover  a  greater  sum  than  that  paid  in.49 

The  payment,  whether  the  action  sounds  in  contract  or  in 
tort,  admits  nothing  more  than  would  entitle  the  plaintiff  to 
recover  the  amount  so  paid.60  Furthermore,  if  the  contract  de- 
clared on  is  invalid,  payment  into  court  gives  it  no  validity.51 

A  plea  of  payment  into  court  interposed  to  one  or  more  in- 
debitatus  counts  admits  only  that  the  plaintiff  has  a  cause  of 
action,  to  the  amount  of  the  sum  paid  in,  on  one  or  more  of  the 
contracts  declared  on.52  If  there  are  several  counts  in  the 

«  Dyer  v.  Ashton,  1  Barn.  &  C.  3;  Archer  v.  English,  9  Dowl.  21,  2 
Scott  N.  R.  156,  1  Man.  &  G.  873;  Cox  v.  Brain,  3  Taunt.  95;  Lipscombe 
v.  Holmes,  2  Camp.  441;  Gutteridge  v.  Smith,  2  H.  Bl.  374;  Israel  v. 
Benjamin,  3  Camp.  40;  Middleton  v.  Brewer,  Peake  Add.  Gas.  15;  Ran- 
dall v.  Lynch,  2  Camp.  352,  357;  Leggett  v.  Cooper,  2  Stark.  103;  Bacon 
v.  Charlton,  7  Cush.  (Mass.)  581. 

A  bill  of  particulars,  filed  after  a  declaration  in  general  assumpsit, 
is  not  equivalent  to  a  declaration  in  special  assumpsit,  within  the 
meaning  of  this  rule.  Blackburn  v.  Scholes,  2  Camp.  341. 

By  taking  out  a  summons  to  be  permitted  to  pay  a  certain  sum  in 
discharge  of  the  claim',  the  defendant  admits  that  so  much  is  due  from 
him.  Williamson  v.  Henley,  6  Bing.  299.  By  paying  money  into  court 
the  defendant  admits  jurisdiction  of  his  person.  Miller  v.  Williams,  5 
Esp.  19,  21.  See,  generally,  6  Current  Law,  994. 

eoRigge  v.  Burbidge,  15  Mees.  &  W.  598;  Rucker  v.  Palsgrave,  1 
Camp.  557,  1  Taunt.  419;  Hitchcock  v.  Tyson,  2  Esp.  481,  note;  Seaton 
v.  Benedict,  5  Bing.  28;  Schreger  v.  Garden,  16  Jur.  568;  Story  v.  Fin- 
nio,  6  Exch.  123. 

5i  Ribbans  v.  Crickett,  1  Bos.  &  P.  264. 

"Stapleton  v.  Nowell,  6  Mees.  &  W.  9;  Archer  v.  English,  9  Dowl. 
21,  2  Scott,  N.  R.  156,  1  Man.  &  G.  873;  Kingham  v.  Robins,  5  Mees.  ft 
W.  94.  See,  however,  Bennett  v.  Francis,  2  Bos.  &  P.  550;  Huntington 


472  LAW   OP   EVIDENCE.  §   140 

declaration,  and  the  defendant  does  not  specify  on  which  the 
payment  is  to  be  applied,  the  payment  is  an  admission  only  that 
the  defendant  owes  the  plaintiff  the  amount  so  tendered  on 
some  one  or  more  of  the  several  counts.  It  does  not  admit  an 
indebtedness  on  any  particular  count,  nor  a  liability  on  all.53 
If  there  are  two  inconsistent  counts,  on  the  latter  of  which 
money  is  paid  into  court,  which  the  plaintiff  accepts,  the  de- 
fendant is  not  entitled  to  show  this  to  the  jury  in  order  to  nega- 
tive any  allegation  in  the  first  count.54 

ART.  III.     EFFECT  IN  SECOND  TRIAL. 

§  140.  A  judicial  admission  may  be  conclusive  in  a  second 
trial  of  the  issue.55  Thus,  an  admission  of  counsel  binds  the 
client  in  a  subsequent  trial  if  it  appears  to  have  been  intended 
to  be  general,  and  not  limited  in  purpose  to  the  trial  in  which 
it  is  made.56  An  admission  made  for  the  purpose  of  one  trial 
only  does  not  thus  bind  the  party  in  a  second  trial,  however.57 

v.  American  Bank,  6  Pick.  (Mass.)  340;  Jones  v.  Hoar,  5  Pick.  (Mass.) 
285. 

53Rubbard  v.  Knous,  7  Gush.  (Mass.)  556. 

s*  Gould  v.  Oliver,  2  Man.  &  G.  208. 

55  Langley  v.  Oxford,  1  Mees.  &  W.  508;  Woodcock  v.  Calais,  68  Me. 
244. 

An  affidavit  for  certiorari,  though  not  binding  on  the  affiant  in  a 
second  trial,  is  admissible  in  evidence  against  him.  Mushat  v.  Moore, 
20  N.  C.  (4  Dev.  &  B.)  257. 

56  Doe  d.  Wetherell  v.  Bird,  7  Car.  &  P.  6;  Elton  v.  Larkins,  1  Moore 
&  R.  196;   Cent.  Branch  N.  P.  R.  Co.  v.  Shoup,  28  Kan.  394,  42  A.  R. 
163.     And  see  Central  Bridge  Corp.  v.  Lowell,  15  Gray   (Mass.)    106, 
128. 

This  is  certainly  true  where  the  admission  was  reduced  to  writing 
and  embodied  in  the  record  of  the  case  on  the  first  trial.  Holley  v. 
Young,  68  Me.  215,  28  A.  R.  40. 

57  An  admission,  made  to  prevent  a  continuance,  that  an  absent  wit- 
ness, if  present,  would  testify  to  a  certain  state  of  facts,  is  not  admis- 
sible at  a  subsequent  trial  when  the  witness  is  present  in  court.     Cut- 
ler v.  Cutler,  130  N.  C.  1,  89  A.  S.  R.  854. 


§  141  CONSTRUCTION   OF   ADMISSION.  473 

An  agreed  statement  of  facts  or  an  agreed  case  is  admissible 
in  evidence  in  a  second  trial  of  the  action  as  an  admission  of 
either  party  to  it  ;58  and  this  is  true,  even  though  it  was  made 
for  the  purpose  of  the  first  trial  only,  and  was  afterwards  with- 
drawn.69 It  is  not,  however,  conclusive  of  the  facts  which  it 
recites.  Consequently,  either  party  may  explain  or  disprove 
any  statement  contained  in  it.80 

ART.    IV.     CONSTRUCTION    OF    ADMISSION— INTRODUCTION    OF 
ENTIRE  WRITING. 

§  141.  Where  a  judicial  admission  is  offered  in  evidence, 
the  entire  writing  must  be  looked  to  in  order  to  determine  the 
nature  and  extent  of  the  admission  ;61  and  it  has  been  held  that 
the  party  desiring  to  use  the  admission  must  ordinarily  intro- 
duce the  entire  writing  in  which  it  occurs.62  However,  a  party 
who  gives  in  evidence  an  admission  in  the  pleading  of  his  ad- 
versary is  not  estopped  to  question  a  part  of  it  which  is  against 
him.  He  may  use  the  admission  so  far  as  it  makes  in  his  favor, 
and  disprove  the  rest.63 

If  only  a  part  of  the  writing  containing  a  judicial  admission 

The  concession  of  a  party  on  a  former  trial,  when  not  attached  to 
the  record,  binds  him  in  that  trial  only.  Pearl  v.  Allen,  1  Tyler 
(Vt.)  4. 

A  demurrer  to  evidence  is  not  binding  as  an  admission  in  a  subse- 
quent trial  of  the  case.  Mitchell  v.  Bannon,  10  111.  App.  340. 

58  Prestwood  v.  Watson,  111  Ala.  604;  Merchants'  Bank  v.  Marine 
Bank,  3  Gill  (Md.)  96,  43  A.  D.  300.  And  see  Perry  v.  Simpson  W. 
Mfg.  Co.,  40  Conn.  313. 

oo  King  v.  Shepard,  105  Ga.  473. 

60  King  v.  Shepard,  105  Ga.  473.     And  see  Perry  v.  Simpson  W.  Mfg. 
Co.,  40  Conn.  313. 

61  Gildersleeve  v.  Landon,  73  N.  Y.  609. 

Plea  of  set-off  and  copy  of  account  held  inadmissible  without  the  in- 
troduction of  the  declaration  also.  Gardner  v.  Meeker,  169  111.  40. 

62  Southern  R.  Co.   v.  Hubbard,   116   Ala.   387.    And  see   People  v. 
Hayes,  140  N.  Y.  484,  37  A.  S.  R.  572,  579. 

6.1  Mott  v.  Consumers'  Ice  Co.,  73  N.  Y.  543. 


474  LAW   OF   EVIDENCE.  §   142 

is  introduced  against  the  party  who  made  it,  he  in  turn  may 
put  in  so  much  of  the  rest  of  the  writing  as  is  necessary  to 
illustrate,  qualify,  or  explain  the  admission.64  In  some  cases 
it  has  been  held  that  he  may  put  in  only  so  much  of  it.65  In 
other  cases  he  has  been  allowed  to  put  in  the  entire  writing.66 

ART.  V.     WITHDRAWAL  OF  ADMISSION. 

§  142.  If  a  judicial  admission  has  been  made  improvident- 
ly,  inadvertently,  or  by  mistake,  the  court  may  in  its  discretion 
relieve  the  party  from  the  consequences  of  his  error67  by  order- 
ing a  repleader,  or  by  discharging  the  case  stated  or  the  agree- 
ment if  made  in  court,  or  by  allowing  the  admission  to  be  with- 
drawn.68 However,  a  party  will  not  be  allowed  to  withdraw 

64Davies  v.  Flewellen,  29  Ga.  49;  Moore  v.  Wright,  90  111.  470; 
Gunn's  Adm'r  v.  Todd,  21  Mo.  303,  64  A.  D.  231  (semble);  Gildersleeve 
v.  Mahony,  5  Duer  (N.  Y,)  383. 

esSiberry  v.  State  (Ind.)  39  N.  E.  936;  Gunn's  Adm'r  v.  Todd,  21 
Mo.  303,  64  A.  D.  231;  In  re  Chamberlain,  140  N.  Y.  390,  37  A.  S.  R. 
568,  569. 

es  Bath  v.  Bathersea,  5  Mod.  9;  Callan  v.  McDaniel,  72  Ala.  96;  Rob- 
erts v.  Tennell,  3  T.  B.  Mon.  (Ky.)  247,  249  (semble). 

67  Jannette  v.  Great  Western  R.  Co.,  4  U.  C.  C.  P.  488;  Harvey  v. 
Thorpe,  28  Ala.  250,  65  A.  D.  344;  Wallace  v.  Matthews,  39  Ga.  617,  99 
A.  D.  473;  Holley  v.  Young,  68  Me.  215,  28  A.  R.  40;  Smith  v.  Fowler, 
12  Lea  (Tenn.)  163. 

An  admission  from  which  the  adversary  may  gain  a  legal  right  may 
not  be  withdrawn  without  his  consent.  It  is  otherwise  where  the  ad- 
mission confers  no  right.  Kohn  v.  Marsh,  3  Rob.  (La.)  48. 

es  i  Greenl.  Ev.  §  206. 

If  an  admission  is  made  in  a  pleading  through  mistake,  the  party 
pleading  should  ask  leave  to  amend.  It  is  not  sufficient  merely  to  in- 
troduce evidence  of  the  mistake  in  the  trial.  If  he  does  no  more  than 
this,  he  remains  bound  by  the  admission.  Foley  v.  Holtry,  41  Neb. 
563,  565. 

In  England  it  was  held  in  1832  that  if  a  party  wishes  to  withdraw 
a  written  admission  of  fact  made  for  the  purpose  of  the  trial  he  should 
take  out  a  summons  before  a  judge  to  obtain  permission  so  to  do. 
Elton  v.  Larkins,  5  Car.  &  P.  385. 


§   142  WITHDRAWAL  OF  ADMISSION.  475 

an  admission  if  the  situation  has  so  changed,  as  by  the  death  of 
a  witness,  that  his  adversary  will  be  prejudiced  by  the  with- 
drawal;69 nor  will  a  withdrawal  be  permitted  unless  sufficient 
time  remains  for  the  adverse  party  to  prepare  his  case  for  trial 
on  the  points  to  which  the  admission  relates.  A  withdrawal 
in  the  course  of  the  trial  will  not  ordinarily  be  allowed.70 

While  an  admission  made  in  court  may  be  retracted  at  a  sub- 
sequent trial,  yet  the  fact  that  it  was  once  made  is  still  com- 
petent evidence  against  the  party  who  made  it.71 

e»  Wilson  v.  Louisiana  Bank,  55  Ga.  98;  Wallace  v.  Matthews,  39 
Ga.  617,  99  A.  D.  473. 

TO  Wallace  v.  Matthews,  39  Ga.  617,  99  A.  D.  473 ;  Hargroves  v.  Redd, 
43  Ga.  142. 

An  admission  may  be  withdrawn  only  on  ample  notice  to  the  ad- 
verse party.  Hargroves  v.  Redd,  43  Ga.  142,  150. 

71  Perry  v.  Simpson  W.  Mfg.  Co.,  40  Conn.  313. 


CHAPTER  IV. 

ESTOPPEL. 

AET.  I.  GENERAL  CONSIDERATIONS. 

ART.  II.  ESTOPPEL  BY  RECORD. 

ART.  III.  ESTOPPEL  BY  DEED. 

ART.  IV.  ESTOPPEL  BY  CONTRACT. 

ART.  V.  ESTOPPEL  BY  MISREPRESENTATION. 

ART.  I.     GENERAL  CONSIDERATIONS. 

§  143.  There  are  four  kinds  of  estoppel,  viz. :  (1)  Estoppel 
by  record,  of  which  the  important  illustration  is  the  estoppel 
created  by  a  judgment;  (2)  estoppel  by  deed,  meaning  by  the 
latter  term  a  sealed  instrument  of  any  sort;  (3)  estoppel  by 
contract,  simple  or  otherwise,  which  in  part  is  closely  related 
to  estoppel  by  deed,  and  in  part  rests  perhaps  on  the  broader 
principle  of  which  that  form  of  estoppel  is  but  an  application ; 
and  (4)  estoppel  by  misrepresentation,  either  express  or  im- 
plied from  conduct.  Estoppel  by  contract  and  estoppel  by  mis- 
representation  are  known  as  estoppel  in  pais, — the  former,  in 
one  respect,  with  questionable  propriety.  Estoppel  by  misrep- 
resentation is  known  also  as  equitable  estoppel. 

The  law  of  estoppel  is  not  a  part  of  the  law  of  evidence, 
in  the  proper  sense  of  the  latter  term.  Jn  a  certain  aspect, 
however,  certain  rules  of  estoppel  are  closely  associated  with 
the  law  of  evidence  in  that  they  bear  upon  the  right  or  the 
necessity  of  adducing  evidence  concerning  the  subject-matter 
of  the  estoppel.  This  relation  between  these  two  disparate 
branches  of  the  law  is  the  more  readily  accepted  because  of 
the  fact  that  the  question  of  estoppel  is  oftentimes  (in  certain 
classes  of  cases,  always)  presented  on  an  offer  of  evidence  and 
objection  thereto. 


§  144  ESTOPPEL  BY  RECORD.  477 

ART.  II.  ESTOPPEL  BY  RECORD. 

A.  General  Considerations,  §  144. 

B.  Estoppel  by  Judgment. 

General  considerations,  §  145. 

(a)  Record  of  judgment  as  evidence  and  effect  of  judgment  as 

estoppel. 

(b)  Judgment  as  bar  to  action  or  defense  and  judgment  as 

proof  of  matter  determined. 

(c)  Relation  of  estoppel  by  judgment  to  law  of  evidence. 
Requisites  of  judgment,  §  146. 

(a)  Character  of  court. 

(b)  Validity  of  judgment. 

(c)  Finality  of  judgment. 

Persons  estopped  and  entitled  to  urge  estoppel,  §  147. 

(a)  General  rule. 

(b)  Real  and  nominal  parties. 

(c)  Corporate  parties. 

(d)  Coparties. 

(e)  Additional  parties. 

(f)  Severance  of  parties. 

(g)  Parties  in  different  capacities, 
(h)  Evidence  of  identity. 

(i)   Privies. 
Questions  concluded,  §  148. 

(a)  General  rule. 

(b)  Identity  of  cause  of  action. 

(c)  Identity  of  matter  in  dispute. 

(d)  Incidental  and  collateral  matters. 

(e)  Necessity  of  actual  determination. 

(f)  Evidence  of  identity. 

(g)  Burden  of,  proof. 

(h)  Province  of  court  and  of  Jury. 

A.     GENERAL,  CONSIDERATIONS. 

§  144.  The  earliest  form  of  estoppel  is  that  arising  from  a 
record.1  The  record  here  referred  to  may  be  either  a  legisla- 
tive roll  or  the  judgment  roll  of  a  court.2  A  two-fold  estop- 

iBigelow,  Estop.  (5th  Ed.)  4. 

^Bigelow,  Estop.  (5th  Ed.)  35;  11  Am.  &  Eng.  Enc.  Law  (2d  Ed.) 
389,  391;  Taylor  v.  Beckham,  108  Ky.  278,  94  A.  S.  R.  357. 

The  state  may  be  estopped  by  an  act  of  its  legislature.  Enfleld  v. 
Permit,  5  N.  H.  280,  20  A.  D.  580.  But  the  legislature  cannot,  by  the 


478  LAW  OF  EVIDENCE.  §  145a 

pel  arises  from  a  judicial  record;  first,  from  the  record  con- 
sidered as  a  memorial  or  entry  of  the  judgment,  and,  second, 
from  the  record  considered  as  a  judgment.  "In  the  case  first 
mentioned,  the  record  has  conclusive  effect  upon  all  the  world. 
It  imports  absolute  verity,  not  only  against  the  parties  to  it  and 
those  in  privity  with  them,  but  against  strangers  also;  no  one 
may  produce  evidence  to  impeach  it."3  The  estoppel  arising 
from  the  record  considered  as  a  judgment,  on  the  other  hand, 
binds  only  the  parties  to  the  proceeding  and  those  in  privity 
with  them.4  It  is  with  a  certain  phase  of  this  latter  form  of 
estoppel  by  judicial  record  that  the  present  article  is  con- 
cerned. 

B.      ESTOPPEL,  BY  JUDGMENT. 

§  145.    General  considerations. 

(a)  Record  of  judgment  as  evidence  and  effect  of  judgment 
as  estoppel.  It  should  be  noticed  in  the  present  connection 
that,  when  it  is  desired  to  take  advantage  of  a  prior  adjudica- 
tion, two  questions  are  presented:  First,  how  may  the  judg- 
ment be  proved?  and,  second,  when  proved,  what  effect  does 
the  judgment  have  ?  The  first  is  a  preliminary  question  which 
concerns  the  law  of  evidence,  in  the  strict  sense  of  the  term. 
It  relates,  however,  to  means  of  proof,  and  does  not  therefore 

terms  of  an  act,  conclude  the  state  from  inquiring  judicially  into  the 
validity  and  constitutionality  of  the  act.  State  v.  Graham,  23  La.  Ann. 
402. 

sBigelow,  Estop.  (5th  Ed.)  8,  35;  Black,  Judgm.  §§  604,  605;  Sim- 
mons v.  Shelton,  112  Ala.  284-,  57  A.  S.  R.  39;  Pico  v.  Webster,  14  Gal. 
202,  73  A.  D.  647;  Ambler  v.  Whipple,  139  111.  311,  32  A.  S.  R.  202; 
Westfield  G.  &  M.  Co.  v.  Noblesville  &  E.  G.  R.  Co.,  13  Ind.  App.  481, 
55  A.  S.  R.  244;  Littleton  v.  Richardson,  34  N.  H.  179,  66  A.  D.  759; 
Terry  v.  Hunger,  121  N.  Y.  161,  18  A.  S.  R.  803;  Stephens  v.  Fox,  83 
N.  Y.  313;  Faulcon  v.  Johnston,  102  N.  C.  264,  11  A.  S.  R.  737;  Stephens 
v.  Jack,  3  Yerg.  (Tenn.)  403,  24  A.  D.  583  (semble) ;  Spaulding  v. 
Chamberlin,  12  Vt.  538,  36  A.  D.  358;  First  Nat.  Bank  v.  Huntington 
D.  Co.,  41  W.  Va.  530,  56  A.  S.  R.  878;  Bolln  v.  Metcalf,  6  Wyo.  1,  71 
A.  S.  R.  898.  And  see  7  Current  Law,  1489. 

4  Section  147,1  infra. 


§   145b  ESTOPPEL    BY    RECORD.  479 

fall  within  the  scope  of  the  present  volume,  whose  subject  is 
those  rules  which  concern  the  question  of  the  right  or  the 
necessity  of  adducing  evidence.  The  second  question,  on  the 
other  hand,  presents  a  question  of  estoppel  which,  as  will  short- 
ly be  seen,  touches  the  right  or  the  necessity  of  adducing  evi- 
dence as  to  the  matter  previously  determined, — the  right  of 
the  party  against  *whom  the  judgment  is  offered  to  adduce 
evidence  in  denial  of  the  facts  adjudicated;  the  necessity  rest- 
ing on  his  adversary  of  adducing  evidence  in  proof  of  those 
facts.  And  it  is  to  be  observed  that,  as  has  just  been  inti- 
mated, before  this  second  question — this  question  of  estoppel 
by  former  adjudication — can  arise,  it  is  necessary  for  the  party 
relying  on  the  judgment  to  bring  it  before  the  court,  either 
by  pleading  or  by  evidence  or  by  both,  as  rules  of  law  and 
practice  may  prescribe.  Unless  the  former  adjudication  is  ad- 
mitted, either  in  pleading  or  in  the  trial,  it  must  be  proved  by 
competent  evidence.  It  is  accordingly  assumed  in  the  follow- 
ing discussion  that  the  judgment  of  which  advantage  is  sought 
to  be  taken  as  an  estoppel  has  been  either  admitted  or  proved, 
so  that  the  only  question  concerning  it  with  which  the  court 
is  occupied  is  that  relating  to  its  effect  as  an  estoppel. 

(b)  Judgment  as  bar  to  action  or  defense  and  judgment  as 
proof  of  matter  determined.  A  judgment  determining  a  par- 
ticular matter  estops  both  parties  and  their  privies  from  deny- 
ing that  matter  in  a  subsequent  suit,  and,  as  a  corollary,  re- 
lieves either  of  them  of  the  necessity  which  might  otherwise 
rest  on  him  of  proving  the  matter  so  determined.  And  at  the 
outset  it  may  be  remarked  that  the  matter  determined  by  a 
judgment  may  be  either  (1)  a  right  asserted  as  founding  an 
action  or  a  defense;  (2)  a  state  of  facts  not  constituting  a 
right,  but  amounting  to  a  defense;  or  (3)  a  fact  (or  a  state  of 
facts)  constituting  neither  a  right  nor  a  defense. 

The  question  of  estoppel  by  judgment  is  presented  in  a  va- 
riety of  ways.  They  fall  generally  under  two  heads,  which, 
for  the  sake  of  convenience,  may  be  referred  to  as  two  forms 


480  LAW   OF   EVIDENCE.  §    145b 

of  estoppel  by  judgment.  First,  the  judgment  may  be  set  up  as 
a  bar  to  a  right  of  action  or  a  defense  asserted  in  a  subsequent 
action ;  second,  it  may  be  put  forward  as  establishing  a  matter 
not  in  itself  constituting  a  right  of  action  or  a  defense  in  the 
subsequent  action.5  This  second  form  of  estoppel  by  judgment 
is  sometimes  referred  to  as  estoppel  by  verdict.6  As  has  been 
observed,  however,  it  is  not  accurate  to  speak  of  estoppel  "by 
verdict";  a  verdict  alone,  without  a  judgment  upon  it,  does 
not  work  an  estoppel.7 

The  judgment  is  a  bar  in  the  following  cases :  First.  Plain- 
tiff asserts  a  cause  of  action  resting  on  a  particular  right,  (a) 
A  judgment  in  his  favor  bars  the  defendant  and  his  privies 
from  asserting  that  right  in  a  subsequent  proceeding,  either  as 
a  ground  of  action  or  defense  against  the  plaintiff  or  his  privies, 
(b)  A  judgment  against  plaintiff  bars  him  and  his  p*rivies  from 
asserting  that  right  in  a  subsequent  proceeding,  either  as  a 
ground  of  action  or  defense  against  the  defendant  or  his 
privies.  Second.  Defendant  asserts  a  defense  resting  on  a  par- 
ticular right  or  state  of  facts,  (a)  A  judgment  in  his  favoi 
bars  the  plaintiff  and  his  privies  from  asserting  that  right  or 
state  of  facts  in  a  subsequent  proceeding,  either  as  a  ground 
of  action  or  defense  against  the  defendant  or  his  privies,  (b) 
A  judgment  against  the  defendant  bars  him  and  his  privies 
from  asserting  that  right  or  state  of  facts  in  a  subsequent  pro- 
ceeding, either  as  a  ground  of  action  or  defense  against  the 
plaintiff  or  his  privies.  It  will  be  observed  that  in  all  these 
cases  the  right  or  the  state  of  facts  determined  in  the  former 
suit  constitutes  the  entire  foundation  of  the  right  of  action  or 
defense  asserted  in  the  subsequent  action. 

5  Cromwell  v.  Sac  County,  94  U.  S.  351;  Fuller  v.  Metropolitan  L. 
Ins.  Co.,  68  Conn.  55,  57  A.  S.  R.  84,  88. 

e  Bigelow,  Estop.  (5th  Ed.)  90,  and  numerous  cases. 

T  Black,  Judgm.  §  506;  Dougherty  v.  Lehigh  C.  &  N.  Co.,  202  Pa.  635, 
90  A.  S.  R.  660. 


§   145b  ESTOPPEL   BY   RECORD.  481 

In  the  following  eases  the  judgment  is  offered  as  a  substi- 
tute for  proof  of  a  matter  not  in  itself  constituting  a  right  of 
action  or  defense  in  the  subsequent  action.  Referring  first  to 
matters  constituting  a  right  of  action  or  defense  in  the  former 
suit:  (1)  Plaintiff  asserts  a  cause  of  action  resting  on  a  par- 
ticular right,  (a)  A  judgment  in  his  favor  precludes  the  de- 
fendant from  disproving  that  right  by  extraneous  evidence  in 
any  subsequent  action  between  the  parties  or  their  privies, 
even  though  the  right  of  action  or  defense  asserted  in  the  sub- 
sequent suit  is  not  based  entirely  on  the  previously  determined 
right,  (b)  A  judgment  against  the  plaintiff  precludes  him 
from  asserting  that  right  in  any  subsequent  action  between  the 
parties  or  their  privies,  even  though  the  right  of  action  or  de- 
fense asserted  in  the  subsequent  suit  is  not  based  entirely  on 
the  previously  determined  right.  (2)  Defendant  asserts  a  de- 
fense resting  on  a  particular  right  or  state  of  facts,  (a)  A 
judgment  in  his  favor  precludes  the  plaintiff  from  disproving 
that  right  or  state  of  facts  by  extraneous  evidence  in  any  sub- 
sequent action  between  the  parties  or  their  privies,  even  though 
the  right  of  action  or  defense  asserted  in  the  subsequent  suit  is 
not  based  entirely  on  the  previously  determined  right  or  state 
of  facts,  (b)  A  judgment  against  the  defendant  precludes 
him  from  asserting  that  right  or  state  of  facts  in  any  subse- 
quent action  between  the  parties  or  their  privies,  even  though 
the  right  of  action  or  defense  asserted  in  the  subsequent  suit 
is  not  based  entirely  on  the  previously  determined  right  or 
state  of  facts.  Referring  next  to  facts  constituting  neither  a 
right  nor  a  defense  in  the  former  suit:  (1)  A  judgment  de- 
termining the  existence  of  a  particular  fact  not  in  itself  con- 
stituting a  right  or  defense  precludes  the  parties  and  their 
privies  from  denying  that  fact,  and  hence  dispenses  with  ex- 
traneous evidence  of  it,  in  any  subsequent  suit,  whether  or  not 
the  two  suits  involve  the  same  right  of  action  or  defense.  (2) 
A  judgment  determining  the  nonexistence  of  a  particular  fact 
Hammon,  Ev. — 31.  • 


482  LAW  OF   EVIDENCE.  §   145b 

not  constituting  in  itself  a  right  or  defense  precludes  the  par- 
ties and  their  privies  from  proving  that  the  fact  in  truth  exists, 
and  hence  dispenses  with  extraneous  evidence  of  its  nonexist- 
ence  in  any  subsequent  suit,  whether  or  not  the  two  suits  in- 
volve the  same  right  or  defense.  It  will  be  noticed  that  in  all 
these  cases  wherein  the  judgment  operates  simply  to  establish 
facts  independently  of  extraneous  evidence  it  fails  to  operate 
as  a  bar  because  the  right  of  action  or  defense  in  the  subse- 
quent suit  does  not  rest  entirely  on  the  right  or  state  of  facts 
previously  determined. 

The  principle  of  estoppel  by  judgment  is  the  same,  whether 
the  judgment  is  put  forward  as  a  bar  to  a  subsequent  right  of 
action  or  defense,  or  as  a  substitute  for  proof  of  a  matter  not 
in  itself  constituting  a  right  of  action  or  a  defense  in  the  sub- 
sequent suit.  It  has  been  said,  indeed,  first,  that  when  the 
judgment  is  set  up  as  a  bar  to  the  whole  controversy,  the  causes 
of  action  in  the  two  suits  must  be  identical,  but  that  it  is  im- 
material that  the  particular  claim  asserted  in  the  later  case 
was  not  determined  in  the  former  suit,  provided  that  that  claim 
might  have  been  presented  there  as  a  ground  'of  recovery  or 
defense ;  and  second,  that  when  the  judgment  is  offered  merely 
as  proof  of  a  particular  point,  the  causes  of  action  in  the  two 
suits  need  not  be  identical,  but  that  the  particular  point  as- 
serted in  the  later  case  must  have  been  actually  determined  in 
the  former  suit.  This  statement,  however,  is  only  partially 
true,  as  will  be  shown  in  another  connection.8  It  fails  to  dis- 
tinguish between  the  primary  effect  of  the  principle  of  estoppel 
as  precluding  in  all  cases  any  inquiry  into  the  right  or  facts 
adjudicated,  and  its  secondary  effect  as  barring  in  some  cases 
any  right  of  action  or  defense  which  is  based  entirely  on  the 
nonexistence  of  the  adjudicated  right  or  facts. 

In  all  cases  the  primary  and  immediate  effect  of  the  principle 

s  See  §§  148 (b),  148 (e),  infra. 


§    145b  ESTOPPEL   BY   RECORD.  483 

of  estoppel  by  judgment  is  to  preclude  the  parties  and  their 
privies  from  denying  a  right  or  a  fact  which  the  judgment  has 
determined  to  exist,  or  from  asserting  a  right  or  a  fact  which 
the  judgment  has  determined  not  to  exist.  The  effect  is  the 
same,  whether  the  judgment  is  put  forward  as  a  bar  to  a  sub- 
sequent action  or  defense  based  entirely  on  the  same  matter, 
or  whether  it  is  offered  as  a  substitute  for  proof  of  some  right 
or  fact  not  in  itself  constituting  the  right  of  action  or  defense 
in  the  subsequent  suit.  If  the  entire  controversy  which  forms 
the  subject  of  the  subsequent  action  was  not  determined  in  the 
first  suit,  the  judgment  has  only  this  primary  and  immediate 
effect  'of  precluding  any  inquiry  into  the  matters  determined. 
Certainly,  if  the  judgment  disposes  of  a  right  or  fact  that  is 
only  incidentally  involved  in  the  later  suit,  the  right  of  action 
or  defense  subsequently  presented  is  not  barred  as  an  entirety. 
If,  however,  the  entire  controversy  which  forms  the  subject  of 
the  subsequent  action  was  determined  in  the  former  suit,  then 
the  judgment  is  given  the  further  and  secondary  effect  of  bar- 
ring the  right  of  action  or  defense  which  presents  that  contro- 
versy. This  further  and  secondary  effect  as  a  bar  does  not, 
however,  rest  on  any  extension  or  variation  of  the  principle  of 
estoppel.  It  is  only  the  logical  consequence  of  that  principle. 
The  principle  of  estoppel  prevents  a  relitigation  of  matters  once 
determined.  A  given  matter  is  determined,  and  afterwards  put 
in  issue  in  another  suit.  If  that  matter  does  not  found  the  en- 
tire right  of  action  or  defense  in  the  later  action,  then  obviously 
the  entire  right  of  action  or  defense  is  not  barred.  If,  on  the 
other  hand,  that  matter  does  entirely  found  the  subsequent 
right  of  action  or  defense,  then  just  as  obviously  the  entire 
right  of  action  or  defense  is  barred,  because  there  is  nothing 
in  issue  which  the  law  allows  the  parties  to  litigate.  But  this 
is  not  a  rule  of  law,  properly  speaking;  it  is  merely  a  logical 
conclusion  arrived  at  in  applying  the  principle  of  estoppel.  So 
far  as  the  primary  and  characteristic  effect  of  that  principle  is 


484  LAW  OF   EVIDENCE.  §   145C 

concerned,  there  is  therefore  no  distinction  between  its  appli- 
cation to  judgments  put  forward  as  a  bar  and  judgments  of- 
fered merely  as  establishing  a  matter  constituting  neither  a 
right  of  action  nor  a  defense  in  the  subsequent  suit. 

(c)  Relation  of  estoppel  by  judgment  to  law  of  evidence. 
Estoppel  by  judgment,  like  other  forms  of  estoppel,  has  no  re- 
lation to  the  law  of  evidence,  in  the  proper  sense  of  that  term. 
The  judgment  does  not  constitute  evidence  of  the  matter  ad- 
judicated ;9  it  simply  precludes  evidence  in  denial  of  that  mat- 
ter. In  other  words,  the  rule  of  estoppel,  like  the  rule  em- 
bodied in  a  conclusive  presumption  of  law,  declares  the  legal 
insignificance  of  the  nonexistence  of  the  fact  which  forms  the 
subject  of  the  estoppel.  Of  the  two  forms  of  estoppel  by  judg- 
ment, however, — estoppel  as  dispensing  with  proof  and  estop- 
pel as  a  bar, — the  former  seems  to  approach  the  subject  of  evi- 
dence in  that,  in  forbidding  the  adduction  of  evidence  in  de- 
nial of  some  right  or  fact  in  question  in  the  two  suits,  it  takes 
the  place  of  proof  of  that  matter.  The  latter  form  of  estoppel 
does  not  thus  serve  as  a  substitute  for  proof;  on  the  contrary, 

»  The  record  of  the  judgment  is  indeed  evidence;  but  it  is  evidence, 
not  of  the  facts  adjudicated,  but  of  the  adjudication  of  those  £acts. 
When  the  judgment  is  proved  by  the  introduction  of  the  record,  the 
record  as  evidence  has  served  its  purpose,  and  the  further  effect  which 
the  judgment  thus  proved  is  given  as  an  estoppel  to  deny  the  facts  ad- 
judicated is  a  matter  which  concerns,  not  the  adjective  law  of  evi- 
dence, but  the  substantive  law  of  judgments. 

Evidence  is  that  which  has  a  tendency  to  prove  a  fact  in  issue. 
Proof  is  that  degree  of  evidence  which  produces  conviction  of  the  ex- 
istence of  the  fact.  Proof,  therefore,  necessarily  presupposes  the  exist- 
ence of  evidence,  but  evidence  does  not  necessarily  constitute  proof. 
Evidence  is  merely  a  means  of  proof.  Proof  is  the  object  of  evidence. 
When,  therefore,  it  is  said  that  the  judgment  is  offered  "as  evidence" 
of  the  facts  adjudicated,  it  is  to  employ  the  term  "evidence"  in  a  loose 
sense.  Practically,  indeed,  the  judgment  operates  as  a  substitute  for 
proof  of  those  facts;  but  it  does  this,  not  because  it  tends  to  prove 
them,  but  because  the  policy  of  the  law  does  not  allow  the  merits  of 
the  adjudication  to  be  questioned. 


§    145C  ESTOPPEL   BY   RECORD.  435 

it  goes  to  the  subsequent  right  of  action  or  defense.  The  one 
relates  to  issuable  facts  which,  but  for  the  judgment,  would 
have  to  be  proved;  the  other  relates  solely  to  the  subsequent 
right  of  action  or  defense.  One  relates  to  the  vitality  of  a 
judgment  in  preserving  for  evidential  purposes  a  right  or  fact 
once  found;  the  other  relates  to  the  finality  of  a  judgment  as 
disposing  of  a  cause  of  action  or  ground  of  defense.10 

Scope  of  present  article.  This  distinction  may  be  en- 
forced by  illustration.  Given  a  judgment  in  a  previous  suit 
between  the  same  parties  or  their  privies,  how  do  these  two 
forms  of  estoppel  operate?  If  some  fact  on  which  issue  is 
taken  appears  to  have  been  determined  in  a  previous  suit,  the 
judgment  precludes  an  inquiry  into  the  merits  of  that  deter- 
mination, and  in  effect  establishes  the  fact.  The  party  who 
asserts  the  fact  is  thus  absolutely  relieved  of  the  necessity 
which  would,  but  for  the  judgment,  require  him  to  prove  it. 
Practically,  therefore,  in  such  cases,  the  judgment  stands  for 
proof,  and  it  is  only  natural  that  it  should  be  associated  with 
the  law  of  evidence.  This  form  of  estoppel  by  judgment  will 
accordingly  receive  attention  in  the  following  pages.  Taking 
up  the  second  form,  if  the  two  suits  are  based  entirely  on  the 
same  cause  of  action  or  involve  the  same  defense,  and  the  claim 
asserted  in  the  latter  might  successfully  have  been  urged  in 
the  former,  the  judgment  does  not  serve  for  proof  of  any  fact 
in  issue  in  the  second  suit,  and  this  is  so,  whether  or  not  the 
plea  of  former  adjudication  is  the  only  plea,  and  even  though 
(as  the  practice  in  some  states  allows)  the  judgment  is  not 
pleaded  at  all,  but  is  offered  under  the  general  issue.  If  the 
plea  of  former  adjudication  is  alone  interposed,  there  is  no 
particular  fact  in  issue  of  which  the  judgment  serves  for  proof. 
Its  only  effect,  direct  or  indirect,  is  to  bar  the  right  of  action 
or  defense.  The  same  is  true  where  other  pleas  also  are  inter- 

10  Fuller  v.  Metropolitan  L.  Ins.  Co.,  68  Conn.  55,  57  A.  S.  R.  84,  89. 


486  LAW   OF   EVIDENCE.  §  146a 

posed  with  the  plea  of  former  adjudication.  The  judgment 
has  no  effect  on  the  facts  put  in  issue  by  the  other  pleas  save 
to  render  those  issues  immaterial.  And  even  where  the  former 
adjudication  is  asserted  under  a  plea  of  the  general  issue,  yet 
in  those  states  where  a  judgment  so  offered  operates  as  a  bar, 
its  effect  is  the  same.  It  does  not  stand  for  proof  of  any  fact 
put  in  issue  by  that  plea.  It  merely  renders  the  issue  imma- 
terial,— virtually  declaring  that,  even  if  those  facts  do  exist, 
they  give  no  right  to  relief  because  the  matter  has  been  once 
solemnly  adjudicated.  A  judgment  thus  offered  as  an  estoppel 
does  not,  therefore,  in  any  aspect  of  the  case,  relate  to  or  re- 
semble evidence  in  any  sense  of  the  term,  and,  so  far  as  rules 
peculiar  to  judgments  as  a  bar  are  concerned,  the  subject  may 
therefore  be  dismissed  from  further  discussion. 

§  146.     Requisites  of  judgment. 

(a)  Character  of  court.  To  create  an  estoppel,  a  judgment 
must  have  been  rendered  by  a  legally  constituted  court.11 
This  rule,  however,  is  subject  to  some  qualifications.  An 
award  of  arbitrators  stands  on  the  same  footing  with  a  judg- 
ment in  respect  of  its  conclusiveness  as  an  estoppel  in  a  subse- 
quent proceeding  in  a  court  of  justice  ;12  and  the  same  is  true 
of  quasi  judicial  decisions  of  the  United  States  land  office,13 
and  of  certain  other  officers,  federal14  and  local.15 

11  Rogers  v.  Wood,  2  Barn.  &  Adol.  245. 

i2Bulkley  v.  Stewart,  1  Day  (Conn.)  130,  2  A.  D.  57;  Shackelford  v. 
Purket,  2  A.  K.  Marsh.  (Ky.)  435.  12  A.  D.  422;  Brazill  v.  Isham,  12 
N.  Y.  9;  Cox  v.  Jagger,  2  Cow.  (N.  Y.)  638,  14  A.  D.  522;  Davis  v. 
Havard,  15  Serg.  &  R.  (Pa.)  165,  16  A.  D.  537.  In  some  states  an 
award  does  not  of  itself  work  an  estoppel.  There  must  be  a  judgment 
entered  on  it.  Todd  v.  Old  Colony  &  F.  R.  R.  Co..  3  Allen  (Mass.)  18, 
80  A.  D.  49. 

13  Moore  v.  Robbins,  96  U.  S.  530,  535;  Robbins  v.  Bunn,  54  111.  48, 
5  A.  R.  75;  Boatner  v.  Ventress,  8  Mart.  (N.  S.;  La.)  644,  20  A.  D.  266; 
Pin  v.  Morris,  1  Or.  230;  Lament  v.  Stimson.  3  Wis.  545.  62  A.  D.  696. 


§   146b  ESTOPPEL   BY   RECORD.  487 

If  jurisdiction  of  the  subject-matter  and  of  the  parties  ap- 
pears on  the  face  of  the  proceedings,  the  judgment  of  a  court 
of  inferior  jurisdiction,  such,  for  instance,  as  a  justice  of  the 
peace,  is  conclusive,  in  a  subsequent  action,  of  the  facts  deter- 
mined by  it,  the  same  as  the  judgment  of  a  superior  court.1* 
According  to  the  modern  and  better  opinion,  foreign  judgments 
in  personam  are  generally  conclusive  as  an  estoppel,  the  same 
as  domestic  judgments  ;17  and  the  rule  is  the  same  with  regard 
to  sister-state  judgments.18 

(b)  Validity  of  judgment.  A  void  judgment,  as  distin- 
guished from  one  which  is  either  merely  voidable  or  merely 
erroneous,  does  not  work  an  estoppel.19  Thus,  if  the  court  had 
no  jurisdiction  over  the  subject-matter  of  the  action20  or  the 
parties,21  or  if  it  assumed  to  decide  matters  outside  the  actual 
issues,  and  so  not  presented  to  it  for  decision,22  its  judgment 
is  a  nullity,  and  of  no  effect  in  a  subsequent  action.  If,  how- 

i*  Comptroller  of  the  currency.  Casey  v.  Galli,  94  U.  S.  673.  Ap- 
praiser and  collector  of  customs.  U.  S.  v.  McDowell,  21  Fed.  563. 

IB  Huntington  County  Com'rs  v.  Heaston,  144  Ind.  583,  55  A.  S.  R. 
192  (semble);  Osterhoudt  v.  Rigney,  98  N.  Y.  222. 

"Wiese  v.  San  Francisco  M.  F.  Soc.,  82  Cal.  645,  7  L.  R.  A.  577; 
Hallock  v.  Dominy,  69  N.  Y.  238;  Ludwick  v.  Fair,  29  N.  C.  (7  Ired.) 
422,  47  A.  D.  333;  Marsteller  v.  Marsteller,  132  Pa.  517,  19  A.  S.  R.  604. 

IT  Black,  Judgm.  §§  827,  829,  834;  Fisher  v.  Fielding,  67  Conn.  91,  52 
A.  S.  R.  270;  Dunstan  v.  Higgins,  138  N.  Y.  70,  34  A.  S.  R.  431. 

is  Black,  Judgm.  §  856  et  seq.;  Semple  v.  Glenn,  91  Ala.  245,  24  A. 
S.  R.  894;  Andrews  v.  Montgomery,  19  Johns.  (N.  Y.)  162,  10  A.  D. 
213;  Evans  v.  Tatem,  9  Serg.  &  R.  (Pa.)  252,  11  A.  D.  717. 

i»  Springer  v.  Shavender,  118  N.  C.  33,  54  A.  S.  R.  708;  Agnew  v. 
Adams,  26  S.  C.  101;  In  re  Christensen,  17  Utah,  412,  70  A.  S.  R.  794 
(semble). 

20  Elliott  v.  Peirsol's  Lessee,  1  Pet.  (U.  S.)  328,  340;  Gage  v.  Hill,  43 
Barb.  (N.  Y.)  44;  Wall  v.  Wall,  123  Pa.  545,  10  A.  S.  R.  549;  Houston 
T.  Musgrove,  35  Tex.  594;  Taylor  v.  Mut.  R.  F.  L.  Ass'n,  97  Va.  60,  45 
L.  R.  A.  621. 

21  Black,  Judgm.  §  513. 

»*  Lincoln  Nat.  Bank  v.  Virgin,  36  Neb.  735,  38  A.  S.  R.  747;  Munday 
r.  Vail,  34  N.  J.  Law,  418. 


488  LAW   OF   EVIDENCE.  §   146C 

ever,  the  judgment  is  merely  voidable,  as,  for  instance,  be- 
cause of  some  irregularity  in  the  proceedings,  or  if  it  is  merely 
erroneous,  as  where  it  is  legally  incorrect,  and  might  therefore 
have  been  modified  or  reversed  by  a  court  of  review,  in  such 
cases  the  adjudication  is  not  void,  and,  so  long  as  it  stands,  it 
may  be  conclusive,  in  a  subsequent  action,  of  the  facts  involved 
in  the  decision.23 

(c)  Finality  of  judgment.  To  give  rise  to  an  estoppel,  the 
judgment  must  be  final.  Interlocutory  judgments  or  orders, 
being  subject  to  the  power  of  the  court  to  vacate  or  modify  at 
any  time  pending  the  action,  are  not  conclusive  in  an  inde- 
pendent suit.24  Final  orders  as  well  as  judgments  are  conclu- 
sive,26 however,  but  the  doctrine  of  res  judicata  is  not  applied 
to  orders  with  the  same  strictness  as  to  judgments.26 

Whether  the  pendency  of  an  appeal  or  a  proceeding  in  error 
suspends  the  operation  of  the  judgment  as  an  estoppel  is  a 
question  on  which  there  is  a  contrariety  of  opinion.  In  some 
states  the  sole  effect  of  the  proceeding  for  review  is  to  suspend 
execution  of  the  judgment,  which  may  accordingly  operate  as 
an  estoppel  in  an  independent  action  so  long  as  it  remains  un- 

23  Black,  Judgm.  §  513;  Elliott  v.  Peirsol's  Lessee,  1  Pet.  (U.  S.)  328, 
340;  Semple  v.  Glenn,  91  Ala.  245,  24  A.  S.  R.  894;  People  v.  Holladay, 
93  Cal.  241,  27  A.  S.  R.  186;  Barrick  v.  Homer,  78  Md.  253,  44  A.  S.  R. 
283;  Hodson  v.  Union  Pac.  R.  Co.,  14  Utah,  402,  60  A.  S.  R.  902;  Hart 
v.  Moulion,  104  Wis.  349,  76  A.  S.  R.  881  (semble). 

2*  Gage  v.  Gunther,  136  Cal.  338,  89  A.  S.  R.  141;  Rockwell  v.  District 
Court,  17  Colo.  118,  31  A.  S.  R.  265;  Fuller  v.  Metropolitan  L.  Ins.  Co., 
68  Conn.  55,  57  A.  S.  R.  84;  Blair  v.  Anderson,  58  Kan.  97,  62  A.  S.  R. 
606;  Webb  v.  Buckelew,  82- N.  Y.  555;  Scherff  v.  Missouri  Pac.  R.  Co., 
81  Tex.  471,  26  A.  S.  R.  828. 

25Sunkler  v.  McKenzie,  127  Cal.  554,  78  A.  S.  R.  86;  Truesdale  v. 
Farmers'  L.  &  T.  Co.,  67  Minn.  454,  64  A.  S.  R.  430;  White  v.  Ladd,  41 
Or.  324,  93  A.  S.  R.  732;  Burner  v.  Hevener,  34  W.  Va.  774,  26  A.  S.  R. 
948. 

26Clopton  v.  Clopton,  10  N.  D.  569,  88  A.  S.  R.  749;  White  v.  Ladd, 
41  Or.  324,  93  A.  S.  R.  732,  739. 


§  147a  ESTOPPEL  BY  RECORD.  489 

reversed.27  In  other  states,  a  contrary  view  is  taken,  and  an 
estoppel  does  not  arise  until  the  proceeding  for  review  is  de- 
termined.28 A  notice  of  intention  to  move  for  a  new  trial  does 
not  thus  suspend  the  operation  of  the  judgment  as  an  estop- 
pel.29 

If  a  judgment  has  been  vacated  by  the  court  which  rendered 
it,80  or  reversed  in  proceedings  for  review,31  it  becomes  a  nul- 
lity and  does  not  work  an  estoppel. 

§  147.    Persons  estopped  and  entitled  to  urge  estoppel. 

(a)  General  rule.  A  judgment  works  an  estoppel  as  be- 
tween the  parties  to  the  action  and  their  privies.32  "Parties,  in 

27  Cloud  v.  Wiley,  29  Ark.  80;  Burton  v.  Burton,  28  Ind.  342;  Watson 
v.  Richardson,  110  Iowa,  698,  80  A.  S.  R.  331  (statute) ;  Young  v.  Brehe, 
19  Nev.  379,  3  A.  S.  R.  892,  895   (semble);   Parkhurst  v.  Berdell,  110 
N.  Y.  386,  6  A.  S.  R.  384;   Oregonian  R.  Co.  v.  Oregon  R.  &  Nav.  Co., 
27  Fed.  277    (Oregon);    Thompson  v.  Griffin,  69  Tex.   139.     See,  also, 
Moore  v.  Williams,  132  111.  589,  22  A.  S.  R.  563;  Paine  v.  Schenectady 
Ins.  Co.,  11  R.  I.  411. 

If  the  judgment  is  reversed  after  it  has  been  received  in  evidence, 
the  adversary  may  move  for  a  new  trial  of  the  action  in  which  it  was 
thus  admitted.  Parkhurst  v.  Berdell,  110  N.  Y.  386,  6  A.  S.  R.  384. 

28  Brown  v.  Campbell,  100  Cal.  635,  38  A.  S.  R.  314;   Sharon  v.  Hill, 
26  Fed.  337  (California);  Glenn  v.  Brush,  3  Colo.  26;  Byrne  v.  Prather, 
14  La.  Ann.  653;  Day  v.  De  Jonge,  66  Mich.  550;  Ketchum  v.  Thatcher, 
12  Mo.  App.  185;  Sherman  v.  Dilley,  3  Nev.  21   (semble);  Haynes  v. 
Ordway,  52  N.  H.  284;   Souter  v.  Baymore,  7  Pa.  415,  47  A.  D.  518; 
Small  v.  Raskins,  26  Vt.  209. 

29  Young  v.  Brehe,  19  Nev.  379,  3  A.  S.  R.  892. 
so  Black,  Judgm.  §  511. 

si  Regina  v.  Drury,  3  Car.  &  K.  190 ;  Gilbert  v.  American  Surety  Co., 
121  Fed.  499,  61  L.  R.  A.  253;  Smith  v.  Frankfleld,  77  N.  Y.  414. 

sz  This  rule  applies  against  the  state,  as  well  as  against  individuals. 
Cunningham  v.  Shanklin,  60  Cal.  118;  Newport  &  C.  Bridge  Co.  v. 
Douglass,  12  Bush  (Ky.)  673,  716.  Contra,  State  v.  Williams,  94  N.  C. 
891. 

It  has  been  held,  however,  that  a  Judgment  against  a  state  officer  as 
such  does  not  estop  the  state  on  the  principle  of  res  judicata.  Peck  v. 
State,  137  N.  Y.  372,  33  A.  S.  R.  738. 


490  LAW  OF   EVIDENCE.  §   147a 

the  larger  legal  sense,  are  all  persons  having  a  right  to  control 
the  proceedings,  to  make  defense,  to  adduce  and  cross-examine 
witnesses,  and  to  appeal  from  the  decision,  if  any  appeal  lies."3* 
The  estoppel  arises  only  between  the  parties  to  the  judgment 
and  those  in  privity  with  them.  Unless  the  parties  to  the  sub- 
sequent suit  or  their  privies  were  parties  to  the  action  in  which 
the  judgment  was  rendered,  the  adjudication  is  not  conclusive 
on  the  facts.  Only  the  parties  and  their  privies  are  entitled 
to  urge  the  estoppel;  only  the  parties  and  their  privies  are 
bound  by  it.  Strangers  to  the  former  litigation  are  not  con- 
cluded by  the  judgment,  nor  are  they  entitled  to  take  advan- 
tage of  it.  The  judgment  must  be  mutually  binding  on  the 
parties  to  the  suit  in  which  it  is  offered  as  a  substitute  for 
proof,  else  an  estoppel  does  not  arise.34 

Either  party  to  a  judgment  may  urge  it  as  an  estoppel.  Bank  of 
Mobile  v.  Mobile  &  0.  R.  Co.,  69  Ala.  305. 

331  Greenleaf,  Ev.  §  535;  Cecil  v.  Cecil,  19  Md.  72,  81  A.  D.  626; 
Lipscomb  v.  Postell,  38  Miss.  476,  77  A.  D.  651;  Ash  ton  v.  Rochester, 
133  N.  Y.  187,  28  A.  S.  R.  619;  Walker  v.  Philadelphia,  195  Pa.  168,  78 
A.  S.  R.  801.  See,  also,  Brown  v.  Chancy,  1  Kelly  (Ga.)  410,  412. 

One  who  testifies  as  a  witness  in  the  suit  in  which  the  judgment  is 
rendered  is  not,  therefore,  concluded  by  the  adjudication.  Wright  v. 
Andrews,  130  Mass.  149;  Blackwood  v.  Brown,  32  Mich.  104;  Yorks  v. 
Steele,  50  Barb.  (N.  Y.)  397.  Nor  does  a  stranger  to  a  judgment  af- 
fecting his  interests  become  bound  by  prosecuting  a  fruitless  appeal 
from  it.  Majors  v.  Cowell,  51  Cal.  478. 

The  fact  that  one  who  has  no  right  to  control  the  action  or  appeal 
from  the  decision  is  joined  as  a  nominal  party  plaintiff  does  not  bring 
him  within  the  operation  of  the  judgment  as  an  estoppel.  Stoops  v. 
Woods,  45  Cal.  439;  Walker  v.  Phila.,  195  Pa.  168,  78  A.  S.  R.  801. 
However,  a  party  defendant  of  record  is  entitled  to  take  advantage  of 
an  estoppel  by  the  judgment  against  the  plaintiff,  although  he  did  not 
appear  and  defend.  Harrison  v.  Wallton,  95  Va.  721,  64  A.  S.  R.  830. 

s*  ENGLAND:  Rex  v.  Duchess  of  Kingston,  20  How.  State  Tr.  355,  2 
Smith's  Lead.  Gas.  (llth  Ed.)  731. 

UNITED  STATES:     Mut.  B.  L.  Ins.  Co.  v.  Tisdale,  91  U.  S.  238. 

ALABAMA:     State  v.  Williams,  131  Ala.  56,  90  A.  S.  R.  17. 

ARKANSAS:     Roulston  v.  Hall,  66  Ark.  305,  74  A.  S.  R.  97. 


§   147a  ESTOPPEL   BY   RECORD.  491 

This  rule  is  applied  in  civil  cases  wherein  a  judgment  in  a 
criminal  case  is  put  forward  as  creating  an  estoppel,  and  vice 
versa.  While  a  judgment  of  conviction  for  crime  is  conclusive 
of  the  fact  of  conviction,  yet  it  is  not  conclusive  of  the  fact  of 
guilt  in  a  subsequent  civil  suit  between  the  accused  and  a  party 
other  than  the  state,  since  the  parties  to  the  two  actions  are  not 

CALIFORNIA:     Clarke  v.  Perry,  5  Cal.  58,  63  A.  D.  82. 

CONNECTICUT:  Fuller  v.  Metropolitan  L.  Ins.  Co.,  68  Conn.  55,  57  A. 
S.  R.  84. 

GEORGIA:     Brady  v.  Brady,  71  Ga.  71. 

ILLINOIS:     Thompson  v.  Maloney,  199  111.  276,  93  A.  S.  R.  133. 

INDIANA:  Huntington  County  Com'rs  v.  Heaston,  144  Ind.  583,  55  A. 
S.  R.  192. 

MABYLAND:     Cecil  v.  Cecil,  19  Md.  72,  81  A.  D.  626. 

MASSACHUSETTS:     Vose  v.  Morton,  4  Cush.  27,  50  A.  D.  750. 

MICHIGAN:     Van  Kleeck  v.  Hammell,  87  Mich.  599,  24  A.  S.  R.  182. 

MINNESOTA:     Hoerr  v.  Meihofer,  77  Minn.  228,  77  A.  S.  R.  674. 

MISSISSIPPI:  Adams  v.  Yazoo  &  M.  V.  R.  Co.,  77  Miss.  194,  60  L.  R. 
A.  33. 

MISSOURI:     State  v.  Branch,  134  Mo.  592,  56  A.  S.  R.  533. 

NEW  HAMPSHIRE:     Lawrence  v.  Haynes,  5  N.  H.  33,  20  A.  D.  554. 

NEW  JERSEY:     Babcock  v.  Standish,  53  N.  J.  Eq.  376,  51  A.  S.  R.  633. 

NEW  YORK:     Thompson  v.  Clark,  4  Hun,  164. 

NORTH  CAROLINA:  Springer  v.  Shavender,  118  N.  C.  33,  54  A.  S.  R. 
708. 

SOUTH  CAROLINA:  Mauldin  v.  City  Council,  53  S.  C.  285,  69  A.  S.  R. 
855  (semble). 

TEXAS:     Freeman  v.  Hawkins,  77  Tex.  498,  19  A.  S.  R.  769. 

VERMONT:     Nason  v.  Blaisdell,  12  Vt.  165,  36  A.  D.  331. 

WEST  VIRGINIA:  Wilson  v.  Phoenix  P.  Mfg.  Co.,  40  W.  Va.  413,  52 
A.  S.  R.  890  (semble). 

WISCONSIN:     Cameron  v.  Cameron,  15  Wis.  1,  82  A.  D.  652. 

A  party  is  not  concluded  by  a  judgment  unless  he  could  have  taken 
advantage  of  it  had  it  gone  the  other  way;  and  he  is  not  entitled  to 
urge  the  judgment  as  an  estoppel  unless  he  would  have  been  concluded 
by  a  contrary  decision.  State  v.  Branch,  134  Mo.  592,  605,  56  A.  S.  R. 
533,  541;  Moore  v.  Albany,  98  N.  Y.  396,  409;  Walker  v.  Phila.,  195  Pa. 
168,  78  A.  S.  R.  801. 

If  a  judgment  estops  one  party,  it  must  necessarily  estop  the  other, 
since  mutuality  is  essential.  Bridges  v.  McAlister,  106  Ky.  791,  90  A. 
S.  R.  267;  Tibbetts  v.  Shapleigh,  60  N.  H.  487,  491. 


492  LAW  OF   EVIDENCE.  §  147a 

the  same;35  nor  is  a  judgment  of  acquittal  conclusive  of  the 
accused's  innocence  in  a  subsequent  civil  action.36  In  a  subse- 
quent civil  suit  between  the  accused  and  the  state,  however, 
the  parties  being  the  same,  the  judgment  in  the  criminal  case 
may  work  an  estoppel;37  and  a  judgment  of  conviction  is  con- 
clusive in  a  subsequent  prosecution  of  the  same  defendant.38 
A  judgment  in  a  civil  action  is  not  conclusive  as  an  estoppel 
in  a  subsequent  criminal  prosecution  against  one  of  the  par- 
ties;39 nor  is  it  conclusive  on  the  defendant  in  a  subsequent 
penal  action,  even  between  the  same  parties,  because  the  meas- 
ure of  evidence  required  to  produce  conviction  in  the  minds  of 
the  jury  in  the  two  actions  is  different.40 

An  exception  to  the  rule  that  none  but  parties  and  privies 
are  estopped  by  a  judgment  or  entitled  to  urge  the  estoppel 
.exists  in  the  case  of  a  judgment  in  rem.  Such  a  judgment  is 
conclusive  against  any  person  in  any  subsequent  controversy 
where  the  grounds  of  the  adjudication  become  relevant  or  ma- 
terial facts.41 

One  who  relies  on  a  judgment  as  an  estoppel  cannot  dispute  a  ma- 
terial fact  on  which  it  is  founded.  Buford  v.  Adair,  43  W.  Va.  211, 
64  A.  S.  R.  854.  See,  generally  as  to  parties  concluded,  6  Current  Law, 
1505. 

35  Petrie  v.  Nuttall,  11  Exch.  569;  Clark  v.  Irvin,  9  Ohio,  13  J.;  Quinn 
v.  Quinn,  16  Vt.  426. 

se  Carlisle  v.  Killebrew,  89  Ala.  329,  6  L.  R.  A.  617;  Corbley  v.  Wil- 
son, 71  111.  209,  22  A.  R.  98;  Fowle  v.  Child,  164  Mass.  210,  49  A.  S.  R. 
451;  Cluff  v.  Mut.  B.  L.  Ins.  Co.,  99  Mass.  317.  And  see  Summers  v. 
Bergner  Brew.  Co.,  143  Pa.  114,  24  A.  S.  R.  518. 

37  Coffey  v.  U.  S.,  116  U.  S.  436;  State  v.  Adams,  72  Vt.  253,  82  A.  S. 
R.  937.  See  U.  S.  v.  Schneider,  35  Fed.  107;  State  v.  Meek,  112  Iowa, 
338,  51  L.  R.  A.  414.  • 

ss  Com.  v.  Feldman,  131  Mass.  588. 

39  Britton  v.  State,  77  Ala.  202.     See,  however,  Dorrell  v.  State,  83 
Ind.  357. 

40  Riker  v.  Hooper,  35  Vt.  457,  82  A.  D.  646. 

«  Black,  Judgm.  §§  602,  795  et  seq.;  State  v.  Voorhies,  39  La.  Ann. 
499,  4  A.  S.  R.  274;  Redmond  v.  Collins,  15  N.  C.  (4  Dev.)  430,  27  A. 
D.  208;  Street  v.  Augusta  I.  &  B.  Co.,  12  Rich.  Law  (S.  C.)  13,  75  A. 


§   147b  ESTOPPEL   BY   RECORD.  493 

(b)  Real  and  nominal  parties.  Generally  speaking,  the  par- 
ties to  a  judgment  are  those  whose  names  appear  on  the  record 
as  such ;  but  the  presence  of  the  name  on  the  record  is  not  the 
sole  or  exclusive  test.  A  person  may  be  estopped  by  a  judg- 
ment, even  though  he  is  not  a  nominal  party  to  the  cause  in 
which  it  was  rendered.  If  the  real  party  in  interest  in  the  two 
suits  is  the  same,  the  judgment  in  the  former  action  is  admis- 
sible in  the  latter,  although  the  nominal  party  is  different.42 

Under  certain  conditions,  one  not  a  nominal  party  may  be 
estopped  by  the  judgment  if  he  assumed  the  defense  of  the 
action.43  The  conditions  on  which  this  rule  is  applied  are 

D.  714;  Steele  v.  Renn,  50  Tex.  467,  32  A.  R.  605;  Schultz  v.  Schultz, 
10  Grat.  (Va.)  358,  60  A.  D.  335;  State  v.  McDonald,  108  Wis.  8,  81  A. 
S.  R.  878. 

This  effect  as  to  persons  not  parties  or  privies  belon'gs  only  to  judg- 
ments strictly  in  rem,  as  distinguished  from  those  quasi  in  rem. 
Black,  Judgm.  §§  638,  793,  795. 

Except  as  to  his  interest  in  the  property  formerly  in  suit,  a  judg- 
ment in  rem  does  not,  in  another  action,  conclude  one  of  whose  person 
jurisdiction  was  not  obtained.  Durant  v.  Abendroth,  97  N.  Y.  132. 

The  text  is  applicable,  as  a  rule,  also  to  foreign  and  sister  state 
judgments  in  rem.  Black,  Judgm.  §§  813  et  seq.,  922  et  seq. 

«  Cole  v.  Favorite,  69  111.  457;  Burns  v.  Gavin,  118  Ind.  320;  Bridges 
v.  McAlister,  106  Ky.  791,  90  A.  S.  R.  267;  Rogers  v.  Haines,  3  Me.  362; 
Landis  v.  Hamilton,  77  Mo.  554;  Ballou  v.  Ballou,  110  N.  Y.  394. 
Contra,  Allin's  Heirs  v.  Hall's  Heirs,  1  A.  K.  Marsh.  (Ky.)  525. 

However,  the  mere  fact  that  a  person  had  an  interest  in  the  ques- 
tions involved  in  the  former  action,  and  had  notice  of  its  pendency, 
does  not  bring  him  within  the  operation  of  the  judgment  as  a  real 
party  in  interest.  Lower  Latham  Ditch  Co.  v.  Louden  Irr.  C.  Co.,  27 
Colo.  267,  83  A.  S.  R.  80. 

A  person  not  a  party  to  an  action  may,  by  participating  in  its  prose- 
cution, become  bound  by  the  judgment  therein  by  estoppel  in  pais. 
St.  Paul  Nat.  Bank  v.  Cannon,  46  Minn.  95,  24  A.  S.  R.  189. 

«Lovejoy  v.  Murray,  3  Wall.  (U.  S.)  1;  Tootle  v.  Coleman,  107  Fed. 
41,  57  L.  R.  A.  120;  Tyrrell  v.  Baldwin,  67  Cal.  1;  Conger  v.  Chilcote, 
42  Iowa,  18;  Parr  v.  State,  71  Md.  220;  Estelle  v.  Peacock,  48  Mich. 
469;  Nichols  v.  Day,  32  N.  H.  133,  64  A.  D.  358;  Kip  v.  Brigham,  6 
Johns.  (N.  Y.)  158. 


494  LAW   OF   EVIDENCE.  §   147b 

two  :44  First.  The  person  assuming  the  defense  must  not  have 
been  a  mere  intermeddler.  He  must  have  had  an  interest  in 
the  subject-matter  of  the  litigation  or  else  he  must  have  occu- 
pied such  a  position  that,  if  the  defense  had  failed,  he  would 
have  been  liable  over  to  the  nominal  defendant  because  of  some 
obligation,  express  or  implied,  by  which  he  was  bound  to 
him.43  Second.  The  defense  must  have  been  undertaken  and 
conducted  openly  and  with  notice  to  the  adverse  party.46 

Persons  liable  over.     If  a  person  is  responsible  over  to 

another,  either  by  operation  of  law  or  by  express  contract,  and 
notice  has  been  given  him  to  come  in  and  defend  a  suit  against 
the  latter,  whether  or  not  he  does  so,  he  is  estopped  by  the 
judgment  thereafter  rendered.47  An  illustration  of  liability 

**  Black,  Judgm.  §  540;  Cent.  Baptist  Church  v.  Manchester,  17  R.  I. 
492,  33  A.  S.  R/893. 

is  Cannon  River  Mfrs'  Ass'n  v.  Rogers,  42  Minn.  123,  18  A.  S.  R.  497. 

•teLacroix  v.  Lyons,  33  Fed.  437;  Cannon  River  Mfrs'  Ass'n  v.  Rogers, 
42  Minn.  123,  18  A.  S.  R.  497. 

*7Hagerthy  v.  Bradford,  9  Ala.  567;  Davis  v.  Smith,  79  Me.  351; 
Olson  v.  Schultz,  67  Minn.  494,  64  A.  S.  R.  437;  Mo.  Pac.  R.  Co.  v.  Twiss, 
35  Neb.  267,  37  A.  S.  R.  437;  Oceanic  S.  Nav.  Co.  v.  Compania  T.  E., 
134  N.  Y.  461,  30  A.  S.  R.  685;  Mehaffy  v.  Lytle,  1  Watts  (Pa.)  314; 
Spencer  v.  Dearth,  43  Vt.  106. 

This  principle  does  not  apply  to  cases  where  one  is  defending  his 
own  wrong  or  his  own  contract,  although  another  may  be  responsible 
to  him.  Consol.  H.  M.  L.  Mach.  Co.  v.  Bradley,  171  Mass.  127,  68  A. 
S.  R.  409. 

The  rule  is  the  same,  although  the  person  liable  over  is  a  nonresi- 
dent of  the  state  wherein  the  first  action  is  brought.  First  Nat.  Bank 
v.  City  Nat.  Bank,  182  Mass.  130,  94  A.  S.  R.  637;  Konitzky  v.  Meyer, 
49  N.  Y.  571. 

The  judgment  does  not  ordinarily  estop  the  person  who  has  been 
notified  to  defend  from  denying,  in  the  subsequent  suit  against  him, 
that  he  is  in  fact  liable  over  to  the  judgment  defendant.  The  liability 
over  is  not  ordinarily  in  issue  in  the  first  action,  and  must  therefore  be 
established  by  independent  evidence  in  the  subsequent  suit.  Boston 
v.  Worthington,  10  Gray  (Mass.)  496,  71  A.  D.  678;  St.  Joseph  v.  Union 
R.  Co.,  116  Mo.  636,  38  A.  S,  R.  626;  Littleton  v.  Richardson,  34  N.  H. 


§   147b  ESTOPPEL   BY   RECORD.  495 

over  by  operation  of  law  occurs  where  a  judgment  is  recov- 
ered against  a  municipal  corporation  for  injuries  caused  by  a 
defect  or  obstruction  in  a  highway  for  which  a  third  person 
is  responsible.  If  the  real  culprit  was  notified  of  the  action, 
the  judgment  is  conclusive  on  him  as  to  the  fact,  the  cause, 
and,  the  extent  of  the  injury,  in  an  action  by  the  municipality 
to  enforce  his  liability.48 

Indemnitors  are  an  illustration  of  a  class  of  persons  who  are 
liable  over  by  contract.  They  may  be  concluded  by  a  judg- 
ment against  their  principal.49  If  the  covenant  makes  the  in- 
demnitor's  liability  dependent  on  the  result  of  litigation  to 
which  he  is  not  a  party,  and  stipulates  that  he  shall  abide  the 
event,  he  is  estopped  by  the  judgment,  even  though  he  had 
no  notice  of  the  suit.50  If,  however,  the  covenant  is  merely 
one  of  indemnity  against  claims  or  suits,  he  must  have  had 
notice  of  suit,  else  the  judgment  does  not  estop  him.61 

179,  66  A.  D.  759;  Oceanic  S.  Nav.  Co.  v.  Compania  T.  E.,  134  N.  Y.  461, 
30  A.  S.  R.  685. 

"Portland  v.  Richardson,  54  Me.  46,  89  A.  D.  720;  Milford  v.  Hoi- 
brook,  9  Allen  (Mass.)  17,  85  A.  D.  735;  Boston  v.  Worthington,  10 
Gray  (Mass.)  496,  71  A.  D.  678;  St.  Joseph  v.  Union  R.  Co.,  116  Mo. 
€36,  38  A.  S.  R.  626;  Lincoln  v.  First  Nat.  Bank  (Neb.)  60  L.  R.  A. 
923;  Littleton  v.  Richardson,  34  N.  H.  179,  66  A.  D.  759;  Port  Jervis  v. 
First  Nat.  Bank,  96  N.  Y.  550;  Pawtucket  v.  Bray,  20  R.  I.  17,  78  A.  S. 
R.  837. 

Express  notice  of  the  action  against  the  municipality  is  not  necessary 
to  make  the  judgment  therein  binding  on  the  person  liable  over.  It  is 
sufficient  if  he  knew  of  the  action  and  had  an  opportunity  to  defend 
it  Robbins  v.  Chicago,  4  Wall.  (U.  S.)  657;  Port  Jervis  v.  First  Nat. 
Bank,  96  N.  Y.  550. 

"Clark's  Ex'rs  v.  Carrington,  7  Cranch  (U.  S.)  308;  Woodworth  v. 
<Jorsline,  30  Colo.  186,  58  L.  R.  A.  417;  Baxter  v.  Myers,  85  Iowa,  328, 
39  A.  S.  R.  298;  Rapelye  v.  Prince,  4  Hill  (N.  Y.)  119,  40  A.  D.  267; 
Miller  v.  Rhoades,  20  Ohio  St.  494;  Mehaffy  v.  Lytle,  1  Watts  (Pa.) 
314.  Contra,  King  v.  Norman,  4  C.  B.  884. 

The  rule  is  the  same  as  to  implied  contracts  of  indemnity.  Konitzky 
v.  Meyer,  49  N.  Y.  571. 

so  Bridgeport  F.  &  M.  Ins.  Co.  v.  Wilson,  34  N.  Y.  275. 


496  LAW   OF   EVIDENCE.  §    147b 

Warrantors  also  are  liable  over  by  contract.  If  the  war- 
rantor of  title  to  real  estate  is  vouched  in  to  defend  an  action 
for  the  land  against  the  warrantee,  or  if  he  voluntarily  appears 
to  defend  it,  a  judgment  for  plaintiff  affords  conclusive  evi- 
dence, in  a  subsequent  action  for  breach  of  warranty,  of  evic« 
tion  of  the  warrantee  by  paramount  title.52  The  rule  is  the 
same  where  the  warrantee  sues  a  third  person,  who  asserts  a 
paramount  title.  The  warrantor  may  be  vouched  in  to  prose- 
cute, and  a  judgment  for  the  defendant  estops  the  warrantor, 
when  sued  on  his  covenant,  to  deny  that  the  warrantee  was 
evicted  under  a  paramount  title.53  If  the  warrantor  is  not 
notified  of  the  suit,  and  if  he  does  not  voluntarily  come  in  and 
defend  or  prosecute,  as  the  case  may  be,  he  is  not  thus  estopped 
by  the  adverse  judgment.5* 

0 

51  Robinson  v.  Baskins,  53  Ark.  330,  22  A.  S.  R.  202;  Bridgeport  F.  & 
M.  Ins.  Co.  v.  Wilson,  34  N.  Y.  275. 

A  request  to  assume  the  defense,  in  addition  to  a  notice  of  the 
suit,  is  not  necessary.  Drennan  v.  Bunn,  124  111.  175,  7  A.  S.  R.  354; 
Carroll  v.  Nodine,  41  Or.  412,  93  A.  S.  R.  743. 

52Belden  v.  Seymour,  8  Conn.  304,  21  A.  D.  661;  Chicago  &  N.  W. 
R.  Co.  v.  N.  L.  Packet  Co.,  70  111.  217,  220  (semble);  Bever  v.  North, 
107  Ind.  544;  Davenport  v.  Muir,  3  J.  J.  Marsh.  (Ky.)  310,  20  A.  D.  143; 
Chamberlain  v.  Preble,  11  Allen  (Mass.)  370;  Mason  v.  Kellogg,  38 
Mich.  132;  Terry's  Ex'r  v.  Drabenstadt,  68  Pa.  400;  Williams  v.  Burg, 
9  Lea  (Tenn.)  455;  Wendel  v.  North,  24  Wis.  223.  Contra,  Wilder  v. 
Ireland,  53  N.  C.  (8  Jones)  86,  88  (semble). 

The  same  is  true  of  a  covenant  for  quiet  enjoyment.  Kelly  v.  Dutch 
Church,  2  Hill  (N.  Y.)  105  (semble) ;  Adams  v.  Conover,  22  Hun  (N. 
Y.)  424.  Contra,  Martin  v.  Cowles,  19  N.  C.  (2  Dev.  &  Bat.)  101. 

The  same  is  true  of  a  covenant  against  incumbrances.  St.  Louis  v. 
Bissell,  46  Mo.  157*  Andrews  v.  Davison,  17  N.  H.  413,  43  A.  D.  606. 

The  same  rule  applies  in  the  case  of  a  sale  of  personal  property  with 
warranty  of  title,  express  or  implied.  Salle  v.  Light's  Ex'rs,  4  Ala.  700, 
39  A.  D.  317;  Barney  v.  Dewey,  13  Johns.  (N.  Y.)  224,  7  A.  D.  372, 
See,  however,  Shober  v.  Robinson,  6  N.  C.  (2  Murph.)  33. 

RsGragg  v.  Richardson,  25  Ga.  566,  71  A.  D.  190;  Andrews  v.  Deni- 
son,  16  N.  H.  469,  43  A.  D.  565;  Brown  v.  Taylor,  13  Vt.  631,  37  A. 
D.  618.  Contra,  Ferrell  v.  Adler,  8  Humph.  (Tenn.)  43. 


§   147d  ESTOPPEL   BY   RECORD.  497 

0 

(c)  Corporate   parties.     Stockholders   in    a   private    corpo- 
ration are  represented  by  the  corporation,  and,  accordingly,  a 
judgment  against  it  is  conclusive  on  them  as  to  the  existence 
and  validity  of  the  claim  in  suit.55     A  judgment  for  or  against 
a  municipal  corporation  concerning  a  public  matter  is  like- 
wise conclusive  on,  and  may  be  taken  advantage  of  by,  the 
citizens  thereof.56 

(d)  Coparties.     A  judgment  for  or  against  several  parties 

64  Clements  v.  Collins,  59  Ga.  124;  Sisk  v.  Woodruff,  15  111.  15; 
Walton  v.  Cox,  67  Ind.  164;  Ryerson  v.  Chapman,  66  Me.  557;  Ma- 
son v.  Kellogg,  38  Mich.  132,  139;  Wallace  v.  Pereles,  109  Wis.  316, 
53  L.  R.  A.  644. 

The  rule  is  the  same  as  to  a  warrantor  of  personalty.  Salle  v. 
Light's  Ex'rs,  4  Ala.  700,  39  A.  D.  317;  Stephens  v.  Jack,  3  Yerg. 
(Tenn.)  403,  24  A.  D.  583. 

If  notice  is  given  to  the  warrantor,  who  dies  pending  suit,  the  judg- 
ment sustaining  the  paramount  title  is  conclusive  against  his  personal 
representatives,  even  though  no  notice  was  given  them.  Brown  v. 
Taylor,  13  Vt.  631,  37  A.  D.  618. 

55  Hawkins  v.  Glenn,  131  U.  S.  319;  Howard  v.  Glenn,  85  Ga.  238,  21 
A.  S.  R.  156;  Singer  v.  Hutchinson,  183  111.  606,  75  A.  S.  R.  133;  Gaskill 
v.  Dudley,  6  Mete.  (Mass.)  546,  39  A.  D.  750;  Mut.  F.  Ins.  Co.  v.  Phoenix 
Furniture  Co.,  108  Mich.  170,  62  A.  S.  R.  693;  Com.  M.  F.  Ins.  Co.  v. 
Hayden,  60  Neb.  636,  83  A.  S.  R.  545;  Howarth  v.  Angle,  162  N.  Y.  179, 
47  L.  R.  A.  725;  State  v.  McDonald,  108  Wis.  8,  81  A.  S.  R.  878,  881 
(semble).  But  one  may  show  he  is  not  in  fact  a  stockholder,  Semple 
v.  Glenn,  91  Ala.  245,  24  A.  S.  R.  894.  See,  also,  Nickum  v.  Burckhardt, 
30  Or.  464,  60  A.  S.  R.  822;  Wilson  v.  Pittsburgh  &  Y.  Coal  Co.,  43  Pa. 
424;  Clausen  v.  Head,  lip  Wis.  405,  84  A.  S.  R.  933. 

BO  People  v.  Holladay,  93  Cal.  241,  27  A.  S.  R.  186;  Sauls  v.  Freeman, 
24  Fla.  209,  12  A.  S.  R.  190;  Harmon  v.  Auditor  of  Public  Accounts, 
123  111.  122,  5  A.  S.  R.  502;  Clark  v.  Wolf,  29  Iowa,  197;  State  v. 
Rainey,  74  Mo.  229;  Ashton  v.  Rochester,  133  N.  Y.  187,  28  A.  S.  R. 
619;  Bear  v.  Brunswick  County  Com'rs,  122  N.  C.  434,  65  A.  S.  R.  711; 
Stallcup  v.  Tacoma,  13  Wash.  141,  52  A.  S.  R.  25;  State  v.  McDonald, 
108  Wis.  8,  81  A.  S.  R.  878,  881  (semble) ;  Grand  Island  &  N.  W.  R.  Co. 
v.  Baker,  6  Wyo.  369,  71  A.  S.  R.  926.  See,  however,  Long  v.  Wilson, 
119  Iowa,  267,  60  L.  R.  A.  720. 

Hammon,  Ev. — 32. 


498  LAW  OF   EVIDENCE.  §   147f 

does  not  work  an  estoppel  in  favor  of  either  against  the  other 
as  to  their  rights  and  liabilities  inter  se,57  unless  they  were 
adversary  parties  as  to  the  issues  on  which  the  judgment 
rests.58  Nor  is  a  plaintiff  estopped  by  a  judgment  on  an  is- 
sue litigated  between  two  defendants,  but  not  presented  by 
the  complaint.59 

(e)  Additional    parties.     As    between    persons    who    were 
and  are  parties  to  both  suits,  the  judgment  may  be  conclusive, 
although  other  persons   also  were  or  are  parties  to  one  or  the 
other  of  the  two  actions.60 

(f)  Severance   of  parties.    If   the   action   is   dismissed   or 
discontinued  as  to  one  of  several  defendants,  he  is  not  es- 
topped by  the  judgment  subsequently  rendered.61     So,  if  the 
defendants  have   separate   trials,   the   judgment  rendered   in 
one  trial  does  not  work  an  estoppel  in  the  other.62     And  if 
one  of  several  defendants  removes  to  a  federal  court  so  much 
of  the  cause  as  relates  to  him,  he  is  not  estopped  by  the  judg- 
ment subsequently  rendered  in  the  state  court.63 

sTBuffington  v.  Cook,  35  Ala.  312,  73  A.  D.  491;  Bulkeley  v.  House, 
62  Conn.  459,  21  L.  R.  A.  247;  Dent  v.  King,  1  Ga,  200,  44  A.  D. 
638;  Jones  v.  Vert,  121  Ind.  140,  16  A.  S.  R.  379;  Walters  v.  Wood, 
61  Iowa,  290;  Pioneer  S.  &  L.  Co.  v.  Bartsch,  51  Minn.  474,  38  A.  S.  R. 
511;  McMahan  v.  Geiger,  73  Mo.  145,  39  A.  R.  489;  Beveridge  v.  N.  Y. 
El.  R.  Co.,  112  N.  Y.  1,  2  L.  R.  A.  648;  Chrisman's  Adm'x  v.  Harman, 
29  Grat.  (Va.)  494,  26  A.  R.  387.  See,  however,  Lloyd  v.  Barr,  11 
Pa.  41. 

ss  Harmon  v.  Auditor  of  Public  Accounts,  123  111.  122,  5  A.  S.  R. 
502;  Nave  v.  Adams,  107  Mo.  414,  28  A.  S.  R.  421;  Parkhurst  v.  Berdell, 
110  N.  Y.  386,  6  A.  S.  R.  384. 

59  Pitts  v.  Oliver,  13  S.  D.  561,  79  A.  S.  R.  907. 

so  Thompson  v.  Roberts,  24  How.  (U.  S.)  233;  Hanna  v.  Read, 
102  111.  596,  40  A.  R.  608;  Davenport  v.  Barnett,  51  Ind.  329;  Larum 
v.  Wilmer,  35  Iowa,  244;  State  v.  Branch,  134  Mo.  592,  56  A.  S.  R.  533; 
Dyett  v.  Hyman,  129  N.  Y.  351,  26  A.  S.  R.  533,  537. 

61  Berber  v.  Kerzinger,  23  111.  346. 

62  Eikenberry   v.    Edwards,    71    Iowa,    82;    Handley   v.    Jackson,    31 
Or.  552,  65  A.  S.  R.  839. 

es  State  v.  Tiedermann,  10  Fed.  20. 


§   1471  ESTOPPEL  BY   RECORD.  499 

(g)  Parties  in  different  capacities.  To  estop  a  party  by 
judgment,  he  must  have  appeared  in  the  former  suit  in  the 
same  right  or  capacity  as  that  in  which  he  appears  in  the  later 
action.  If  he  sues  or  is  sued  in  a  different  character  or  in- 
terest, the  judgment  is  not  conclusive  on  him.04 

(h)  Evidence  of  identity.  Parol  evidence  is  admissible  to 
identify  the  parties  to  the  two  suits.65  The  real  party  in  in- 
terest may  be  connected  with  the  record  by  extrinsic  evi- 
dence.00 Identity  of  the  names  of  the  parties  to  the  two  ac- 
tions is  prima  facie  evidence  of  identity  of  person.07  If  a  dis- 
crepancy as  to  names  exists,  it  may  be  removed  by  parol.88 

(i)  Privies.     Not  only  the  parties  to  a  judgment,  but  those 

"Leggott  v.  G.  N.  R.  Co.,  1  Q.  B.  Div.  599;  Stoops  v.  Woods,  45  Cal. 
439;  Beals  v.  Cone,  27  Colo.  473,  83  A.  S.  R.  92;  Fuller  v.  Metropoli- 
tan L.  Ins.  Co.,  68  Conn.  55,  57  A.  S.  R.  84;  Erwin  v.  Garner,  108 
Ind.  488,  491;  Benz  v.  Hines,  3  Kan.  390,  397;  Huyghe  v.  Brinkman, 
34  La.  Ann.  1179;  Morrison  v.  Clark,  89  Me.  103,  56  A.  S.  R.  395; 
Bamka  v.  Chicago,  St.  P.,  M.  &  O.  R.  Co.,  61  Minn.  549,  52  A.  S.  R. 
618;  State  v.  Branch,  134  Mo.  592,  56  A.  S.  R.  533;  First  Nat.  Bank 
v.  Shuler,  153  N.  Y.  163,  60  A.  S.  R.  601;  Landon  v.  Townshend,  112 
N.  Y.  93,  8  A.  S.  R.  712;  Nickum  v.  Burckhardt,  30  Or.  464,  60  A.  S.  R. 
822;  Sonnenberg  v.  Steinbach,  9  S.  D.  518,  62  A.  S.  R.  885;  Grigsby  v. 
Peak,  68  Tex.  235,  2  A.  S.  R.  487,  489;  McNutt  v.  Trogden,  29  W.  Va. 
469.  See,  however,  Corcoran  v.  Chesapeake  &  O.  Canal  Co.,  94  U. 
S.  741;  Colton  v.  Onderdonk,  69  Cal.  155;  Stewart  v.  Montgomery,  23 
Pa.  410;  Manigault  v.  Holmes,  2  Bailey  Eq.  (S.  C.)  283. 

One  who  appears  in  one  action  as  a  judgment  creditor  may  be  estop- 
ped by  the  judgment  therein  in  a  subsequent  action  in  which  he  ap- 
pears as  a  sheriff's  indemnitor,  since  in  neither  action  does  he  appear 
In  a  representative  capacity.  Dyett  v.  Hyman,  129  N.  Y.  351,  26 
A.  S.  R.  533. 

es  Gray  v.  Gillilan,  15  111.  453,  60  A.  D.  761. 

ee  Claflin  v.  Fletcher,  7  Fed.  851;  Tarleton  v.  Johnson,  25  Ala.  300,  60 
A.  D.  515. 

67  Garwood   v.   Garwood,  29  Cal.   514.     Presumption  of  identity,  see 
§  48,  supra. 

68  Garwood  v.  Garwood,  29  Cal.  514. 

The  question  of  identity  of  person,  if  it  depends  upon  extrinsic  evi- 
dence, is  generally  one  for  the  jury.  Warner  v.  Mullane,  23  Wis.  450. 


500  LAW   OF   EVIDENCE.  §   1471 

in  privity  with  them,  are  estopped  by  the  adjudication. <!0 
"Privies  are  those  who  are  so  connected  with  the  parties  in 
estate,  or  in  blood,  or  in  law,  as  to  be  identified  with  them 
in  interest,  and  consequently  to  be  affected  with  them  by  the 
litigation,  as  lessor  and  lessee,  heir  and  ancestor,  executor  and 
testator."70  The  privity  that  connects  a  person  with  a  judg- 
ment to  which  he  is  not  a  party  is  privity  of  estate  subse- 
quently attaching.  It  is  immaterial  whether  or  not  privity  in 
blood  or  in  law  exists,  except  as  it  entitles  a  person  to  succeed 
to  some  right,  title,  or  interest  in  the  subject-matter  of  the 
litigation  between  others.71  Unless  the  person  who  urges  the 
judgment,  or  against  whom  the  judgment  is  urged,  claims  an 
interest  in  the  subject-matter  of  the  adjudication  through  or 
under  one  of  the  parties,72  and  unless  that  interest  was  ac- 
quired after  rendition  of  the  judgment,73  he  is  not  estopped, 
nor  may  he  take  advantage  of  the  estoppel. 

«9  Cunningham  v.  Harris,  5  Cal.  81;  Carlton  v.  Davis,  8  Allen  (Mass.) 
94;  Beebe  v.  Elliott,  4  Barb.  (N.  Y.)  457;  Hodson  v.  Union  Pac.  R. 
Co.,  14  Utah,  402,  60  A.  S.  R.  902. 

70  Brown   v.   Chaney,   1   Kelly    (Ga.)    410,   412.     And    see   Ahlers   v 
Thomas,  24  Nev.  407,  77  A.  S.  R.  820. 

71  Black,  Judgm.  §  549. 

720rthwein  v.  Thomas,  127  111.  554,  11  A.  S.  R.  159;  Belknap  v. 
Stewart,  38  Neb.  304,  308,  41  A.  S.  R.  729,  731;  Hunt  v.  Haven,  52 
N.  H.  162;  Hart  v.  Moulton,  104  Wis.  349,  76  A.  S.  R.  881.  And  see 
Winston  v.  Westfeldt,  22  Ala.  760,  58  A.  D.  278. 

To  estop  a  party  by  judgment,  the  subject-matter  of  the  two  suits 
need  not  always  be  the  same.  But  to  estop  one  as  a  privy,  identity 
of  the  subject-matter  of  the  two  suits  is  ordinarily  essential.  See 
Hart  v.  Moulton,  104  Wis.  349,  76  A.  S.  R.  881. 

73  Shay  v.  McNamara,  54  Cal.  169;  Orthwein  v.  Thomas,  127  111.  554, 
11  A.  S.  R.  159;  'Love  v.  Francis,  63  Mich.  181,  6  A.  S.  R.  290; 
Hunt  v.  Haven,  52  N.  H.  162;  Campbell  v.  Hall,  16  N.  Y.  575;  Black- 
more  v.  Gregg,  10  Watts  (Pa.)  222,  36  A.  D.  171;  Zeigler  v.  Maner, 
53  S.  C.  115,  69  A.  S.  R.  842;  Patterson  v.  Rabb,  38  S.  C.  138,  19 
L.  R.  A.  831;  Bensimer  v.  Fell,  35  W.  Va.  15,  29  A.  S.  R.  774,  782; 
Hart  v.  Moulton,  104  Wis.  349,  76  A.  S.  R.  881.  And  see  Boutwell 


§   1471  ESTOPPEL   BY   RECORD.  501 

Illustrations  of  privity.  One  who  claims  an  after-ac- 
quired interest  in  the  subject-matter  of  the  prior  suit  through 
or  under  a  party  to  it  is  a  privy,  and  so  estopped  by  the 
judgment.74 

Husband  and  wife,75  parent  and  child,76  or  guardian  and 
ward,77  as  such,  are  not  in  privity. 

Ancestor  and  heir  are  in  privity.78  Personal  representative 
and  heir  or  devisee  are  not  in  privity,79  except  as  to  the  per- 

v.  Steiner,  84  Ala.  307,  5  A.  S.  R.  375;  Warnock  v.  Harlow,  96  Cal. 
298,  31  A.  S.  R.  209. 

However,  one  who  buys  property  pending  a  suit  of  which  it  forms 
the  subject-matter  is  bound  by  the  judgment  subsequently  rendered. 
Howard  v.  Kennedy's  Ex'rs,  4  Ala.  592,  39  A.  D.  307;  Randall  v.  Lower, 
98  Ind.  255;  Craig  v.  Ward,  1  Abb.  Dec.  (N.  Y.)  454;  Diamond  v. 
Lawrence  County,  37  Pa.  353,  78  A.  D.  429.  The  rule  does  not  apply 
where  the  subject-matter  of  the  suit  is  a  negotiable  instrument. 
Black,  Judgm.  §  550;  Winston  v.  Westfeldt,  22  Ala.  760,  58  A.  D.  278. 
And  in  some  states  the  statute  requires  a  notice  of  lis  pendens  to  be 
filed  where  the  action  concerns  real  property.  Black,  Judgm.  §  550. 

74  Cook  v.  Parham,  63  Ala.  456;  Gushing  v.  Edwards,  68  Iowa,  145; 
Whitford  v.  Crooks,  54  Mich.  261;  Stoutimore  v.  Clark,  70  Mo.  471; 
Sheridan  v.  Andrews,  49  N.  Y.  478;  Strayer  v.  Johnson,  110  Pa.  21; 
Eakin  v.  McCraith,  2  Wash.  T.  112;  Finney  v.  Boyd,  26  Wis.  366. 
And  see  Woods  v.  Montevallo  C.  &  T.  Co.,  84  Ala.  560,  5  A.  S.  R.  393; 
Ahlers  v.  Thomas,  24  Nev.  407,  77  A.  S.  R.  820. 

"Groth  v.  Washburn,  39  Hun  (N.  Y.)  324;  Neeson  v.  Troy,  29  Hun 
(N.  Y.)  173;  Walker  v.  Phila.,  195  Pa.  168,  78  A.  S.  R.  801;  Read  v. 
Allen,  56  Tex.  182;  Selleck  v.  Janesville,  104  Wis.  570,  76  A.  S.  R, 
892. 

Tofiridger  v.  Asheville  &  S.  R.  Co.,  27  S.  C.  456,  13  A.  S.  R.  653; 
Galveston,  H.  &  S.  A.  R.  Co.  v.  Kutac,  72  Tex.  643. 

TT  Morris  v.  Garrison,  27  Pa.  226. 

TS  Webster  v.  Mann,  56  Tex.  119. 

They  are  not  in  privity  as  to  rights  vesting  in  the  heirs  as  sucn 
before  the  judgment  is  rendered.  Love  v.  Francis,  63  Mich.  181,  6 
A.  S.  R.  290. 

7»Boykin  v.  Cook,  61  Ala.  472;  Beckett  v.  Selover,  7  Cal.  215,  68 
A.  D.  237;  Stone  v.  Wood,  16  111.  177;  Dorr  v.  Stockdale,  19  Iowa,  269; 
Valsain  v.  Cloutier,  3  La.  170,  22  A.  D.  179;  Gaither  v.  Welch's  Es- 
tate, 3  Gill  &  J.  (Md.)  259;  Nichols  v.  Day,  32  N.  H.  133,  64  A.  D. 


502  LAW   OF   EVIDENCE.  §   147i 

sonal  estate.80  Successive  administrators  of  the  same  estate 
are  not  in  privity  ;81  nor'  are  an  executor  and  a  succeeding 
administrator  d.  b.  n.  ;82  nor  domestic  and  foreign  executors 
or  administrators  of  the  same  estate.83  Administrator  and 
purchaser  at  probate  sale  are  not  in  privity;84  nor  is  a  per- 
sonal representative  of  a  deceased  partner  in  privity  with  the 
survivors.85  There  is  no  privity  between  coheirs  or  distrib- 
utees.86 

Successors  in  public  office  are  in  privity;87  and  the  same  is 
true  of  successive  receivers.88 

A  judgment  against  the  principal  does  not  ordinarily  estop 

358,  360;  Sharpe  v.  Freeman,  45  N.  Y.  802;  Osgood  v.  Manhattan  Co., 
3  Cow.  (N.  Y.)  612,  15  A.  D.  304;  Wilson  v.  Kelly,  19  S.  C.  160;  Ben- 
simer  v.  Fell,  35  W.  Va.  15,  29  A.  S.  R.  774,  780.  Contra,  Cunningham 
v.  Ashley,  45  Cal.  485;  Moody  v.  Peyton,  135  Mo.  482,  58  A.  S.  R.  604; 
Faran  v.  Robinson,  17  Ohio  St.  242,  93  A.  D.  617;  Barclay  v.  Kimsey, 
72  Ga.  725;  Shannon  v.  Taylor,  16  Tex.  413. 

A  judgment  for  or  against  the  heirs  may  estop  the  personal  repre- 
sentative when  subsequently  suing  for  the  benefit  of  the  heirs,  how- 
ever. Hardaway  v.  Drummond,  27  Ga.  221,  73  A.  D.  730. 

so  Steele  v.  Lineberger,  59  Pa.  308. 

Executor  and  legatee  of  personalty  are  in  privity  until  the  legacy 
is  paid.  Castellaw  v.  Guilmartin,  54  Ga.  299;  Hooper  v.  Hooper,  32 
W.  Va.  526.  Contra,  Valsain  v.  Cloutier,  3  La.  170,  22  A.  D.  179. 

si  Martin  v.  Ellerbe's  Adm'r,  70  Ala.  326. 

82  Graves'  Adm'r  v.  Flowers,  51  Ala.  402,  23  A.  R.  555;  Alsop  v. 
Mather,  8  Conn.  584,  21  A.  D.  703.  Contra,  Latine  v.  Clements,  3 
Kelly  (Ga.)  426;  Manigault  v.  Holmes,  Bailey  Eq.  (S.  C.)  283. 

ss  McLean  v.  Meek,  18  How.  (U.  S.)  16;  Rosenthal  v.  Renick,  44  111. 
202;  Low  v.  Bartlett,  8  Allen  (Mass.)  259;  Pond  v.  Makepeace,  2  Mete. 
(Mass.)  114;  Taylor  v.  Barren,  35  N.  H.  484;  Brodie  v.  Bickley,  2 
Rawle  (Pa.)  431;  Jones  v.  Jones'  Heirs,  15  Tex.  463,  65  A.  D.  174. 

84  Crandall  v.  Gallup,  12  Conn.  365. 

ss  Sturges  v.  Beach,  1  Conn.  507;  Buckingham  v.  Ludlum,  37  N.  J. 
Eq.  137;  Leake  &  W.  O.  House  v.  Lawrence,  11  Paige  (N.  Y.)  80; 
Moore's  Appeals,  34  Pa.  411  (semble). 

se  Walker  v.  Ferryman,  23  Ga.  309. 

ST  Brounker  v.  Atkyns,  Skin.  15. 

88  Verplanck  v.  Van  Buren,  76  N.  Y.  247. 


§  1471  ESTOPPEL  BY   RECORD.  503 

the  surety.88  The  rule  is  otherwise,  however,  as  to  sureties 
on  a  bond  given  in  the  course  of  the  litigation  in  which  the 
judgment  is  rendered.90  And  it  has  been  held  that  there  is 
privity  between  principal  and  surety  on  the  bonds  of  sheriffs 
and  constables,91  executors  and  administrators,92  and  guard- 
ians.93 

8»  King  v.  Norman,  4  C.  B.  884;  Firemen's  Ins.  Co.  v.  McMillan,  29 
Ala.  147;  Irwin  v.  Backus,  25  Cal.  214,  85  A.  D.  125;  Curry  v.  Mack, 
90  111.  606;  McConnell  v.  Poor,  113  Iowa,  133,  52  L.  R.  A.  312;  Moss 
v.  McCullough,  5  Hill  (N.  Y.)  131;  Respublica  v.  Davis,  3  Yeates  (Pa.) 
128,  2  A.  D.  366.  Contra,  Brush  v.  Wilson,  2  L.  C.  249. 

»o  Riddle  v.  Baker,  13  Cal.  295;  Harvey  v.  Head,  68  Ga.  247;  Keane 
v.  Fisher,  10  La.  Ann.  261;  Way  v.  Lewis,  115  Mass.  26;  Towle  v.  Towle, 
46  N.  H.  431;  Methodist  Churches  v.  Barker,  18  N.  Y.  463;  Parkhurst 
v.  Sumner,  23  Vt.  538,  56  A.  D.  94.  And  see  Meyer  v.  Barth,  97 
Wis.  352,  65  A.  S.  R.  124. 

"Dennie  v.  Smith,  129  Mass.  143;  Evans  v.  Com.,  8  Watts  (Pa.)  398, 
34  A.  D.  477;  Tute  v.  James,  50  Vt.  124.  Contra,  Lucas  v.  Governor, 
6  Ala.  826;  Pico  v.  Webster,  14  Cal.  202,  73  A.  D.  647;  Governor  v. 
Shelby,  2  Blackf.  (Ind.)  26;  Carmichael  v.  Governor,  3  How.  (Miss.) 
236;  Rodini  v.  Lytle,  17  Mont.  448,  52  L.  R.  A.  165. 

Whether  the  sureties  on  a  bond  given  by  a  deputy  sheriff  to  his 
principal  are  estopped  by  a  judgment  against  the  sheriff  based  on 
the  deputy's  default  depends  on  a  construction  of  the  instrument. 
Thomas  v.  Hubbell,  15  N.  Y.  405,  69  A.  D.  619;  Chamberlain  v.  God- 
frey, 36  Vt.  380,  84  A.  D.  690. 

Sureties  may  urge  the  estoppel  created  by  a  judgment  in  favor  of 
the  principal.  Brown  v.  Bradford,  30  Ga.  927;  Lower  Alloways  Creek 
v.  Moore,  15  N.  J.  Law,  146. 

ezStovall  v.  Banks,  10  Wall.  (U.  S.)  583;  Martin  v.  Tally,  72  Ala.  23; 
Irwin  v.  Backus,  25  Cal.  214,  85  A.  D.  125;  Ralston  v.  Wood,  15  111. 
159,  58  A.  D.  604  (statute);  Salyer  v.  State,  5  Ind.  202;  Heard  v. 
Lodge,  20  Pick.  (Mass.)  53,  32  A.  D.  197;  State  v.  Holt,  27  Mo.  340,  72 
A.  D.  273;  Kenck  v.  Parchen,  22  Mont.  519,  74  A.  S.  R.  625;  Judge 
of  Probate  v.  Sulloway,  68  N.  H.  511,  49  L.  R.  A.  347;  Casoni  v. 
Jerome,  58  N.  Y.  315;  Slagle  v.  Entrekin,  44  Ohio  St.  637;  Garber  v. 
Com.,  7  Pa.  265.  Contra,  Means  v.  Hicks'  Adm'r,  65  Ala.  241;  Ben- 
nett v.  Graham,  71  Ga.  211;  Hayes  v.  Seaver,  7  Me.  237;  Lipscomb 
v.  Postell,  38  Miss.  476,  77  A.  D.  651;  Chairman  of  Wash.  Co.  Ct.  v. 
Harramond,  11  N.  C.  (4  Hawks)  339;  Norton  v.  Wallace,  1  Rich.  Law 
(S.  C.)  507;  Hobson  v.  Yancey,  2  Grat.  (Va.)  73. 


504  LAW   OF   EVIDENCE. 

§  148.    Questions  concluded. 

(a)  General  rule.  Though  the  issues  in  the  two  suits  may 
be  such  that  the  judgment  in  the  former  is  not  a  bar  to  the 
right  of  action  or  defense  asserted  in  the  latter,  yet  the  judg- 
ment precludes  disproof  of  any  matter  which  was  determined 
in  the  former  action.94  Where  a  judgment  is  directly  attack- 
ed, as  by  an  action  to  set  it  aside,  however,  it  has  no  con- 
clusive effect,98  unless  the  precise  ground  of  nullity  was  raised 

93  Hailey  v.  Boyd's  Adm'r,  64  Ala.  399;  Brodrib  v.  Brodrib,  56  Cal. 
563;  McCleary  v.  Menke,  109  111.  294;  McWilliams  v.  Kalbach,  55  Iowa, 
110;  Cross  v.  White,  80  Minn.  413,  81  A.  S.  R.  267;  Braiden  v.  Mercer, 
44  Ohio  St.  339;  Com.  v.  Rhoads,  37  Pa.  60.  Contra,  Fuselier  v. 
Babineau,  14  La.  Ann.  764;  State  v.  Hull,  53  Miss.  626;  Moore  v. 
Alexander,  96  N.  C.  34  (statute). 

»*  UNITED  STATES:     Cromwell  v.  Sac  County,  94  U.  S.  351. 

ALABAMA:     Norwood  v.  Kirby's  Adm'r,  70  Ala.  397. 

CONNECTICUT:  Huntley  v.  Holt,  59  Conn.  102,  21  A.  S.  R.  71;  Coit  ~v. 
Tracy,  8  Conn.  268,  20  A.  D.  110. 

ILLINOIS:     Mueller  v.  Henning,  102  111.  646. 

IOWA:     Hawley  v.  Warner,  12  Iowa,  42. 

KENTUCKY:     Pleak  v.  Chambers,  7  B.  Mon.  565. 

LOUISIANA:     Montesquieu  v.  Heil,  4  La.  51,  23  A.  D.  471. 

MAINE:     Hobbs  v.  Parker,  31  Me.  143. 

MASSACHUSETTS:     Jennison  v.  West  Springfield,  13  Gray,  544. 

MICHIGAN:     Castor  v.  Bates,  127  Mich.  285,  89  A.  S.  R.  471. 

MINNESOTA:  Byrne  v.  Minneapolis  &  St.  L.  R.  Co.,  38  Minn.  212,  8  A. 
S.  R.  668. 

MISSOURI:  State  v.  Branch,  134  Mo.  592,  56  A.  S.  R.  532;  Paddock  v. 
Somes,  102  Mo.  226,  10  L.  R.  A.  254;  Weir  v.  Marley,  99  Mo.  484,  6  L.  R. 
A.  672. 

NEW  YORK:"  Burhans  v.  Van  Zandt,  7  N.  Y.  523;  Burt  v.  Sternburgh, 
4  Cow.  559,  15  A.  D.  402. ' 

NORTH  CAROLINA:     Dixon  v.  Warters,  53  N.  C.  (8  Jones)  449. 

PENNSYLVANIA:  Allen  v.  International  T.  B.  Co.,  201  Pa.  579,  88  A.  S. 
R.  834;  Rankin's  Appeal,  1  Monaghan,  308,  2  L.  R.  A.  429. 

SOUTH  CAROLINA:     Parker  v.  Leggett,  13  Rich.  Law,  171. 

VERMONT:     Small  v.  Haskins,  26  Vt.  209. 

WISCONSIN:  State  v.  McDonald,  108  Wis.  8,  81  A.  S.  R.  878.  And 
.see,  generally,  7  Current  Law,  1767. 

»B  Davidson  v.  New  Orleans,  32  La.  Ann.  1245. 


§    148b  ESTOPPEL   BY    RECORD.  505 

and  decided  in  the  action  in  which  the  judgment  was  render- 
ed.96 

(b)  Identity  of  cause  of  action.  The  judgment  works  an 
estoppel  as  to  matters  thus  determined,  even  though  the  cause 
of  action  or  the  subject-matter  of  the  later  suit  is  different  from 
that  involved  in  the  earlier  action.97  It  is  commonly  said 
that  this  rule  furnishes  a  point  of  distinction  between  judg- 
ments set  up  as  a  bar  and  judgments  offered  as  proof  of  rights 
or  facts  not  entirely  founding  the  right  of  action  or  defense 
in  the  second  suit.  When  a  judgment  is  put  forward  as  a 
bar,  it  is  said,  the  causes  of  action  in  the  two  suits  must 
be  the  same.98  This  statement,  however,  is  much  too  broad. 
In  the  first  place,  defenses,  as  well  as  rights  of  action,  may 
be  barred  by  former  adjudication.  A  judgment  against  a 
particular  defense  may  bar  that  defense  in  any  subsequent  ac- 
tion between  the  parties  or  their  privies,  whether  or  not  the 
causes  of  action  are  identical.  In  the  second  place,  it  is  too 
broad  a  statement  even  to  say  that  to  create  a  bar  the  causes 
of  action  or  grounds  of  defense  must  be  the  same.  The  truth 
of  the  matter  is  that  a  judgment  will  bar  any  subsequent  right 
of  action  or  defense  that  rests  entirely  on  the  same  right  or 

»eThe  Acorn,  2  Abb.  U.  S.  434,  Fed.  Gas.  No.  29;  Hoggatt's  Heirs  v. 
Crandall,  39  La.  Ann.  976. 

of  Aslin  v.  Parkin,  2  Burrow,  665,  668 ;  Cromwell  v.  Sac  County,  94 
U.  S.  351;  Jackson  v.  Lodge,  36  Cal.  28;  Betts  v.  Starr,  5  Conn.  550,  13 
A.  D.  94;  Markley  v.  People,  171  111.  260,  63  A.  S.  R.  234;  Hanna  v. 
Read,  102  111.  596,  40  A.  R.  608,  611;  Eastman  v.  Cooper,  15  Pick. 
(Mass.)  276,  26  A.  D.  600,  605;  Spencer  v.  Dearth,  43  Vt.  98. 

The  fact  that  additional  property  was  involved  in  the  former  action 
does  not  affect  the  conclusiveness  of  the  judgment  as  to  the  property 
involved  in  the  subsequent  suit.  Rucker  v.  Steelman,  97  Ind.  222.  Nor 
does  the  fact  that  additional  evidence  is  offered  in  the  subsequent  suit 
affect  the  conclusiveness  of  the  judgment.  Du  Bois  v.  Phila.,  W.  &  B.  R. 
Co.,  5  Fish.  Pat.  Cas.  208,  Fed.  Gas.  No.  4,109. 

es  Betts  v.  Starr,  5  Conn.  550,  13  A.  D.  94,  97  (semble) ;  Eastman  v. 
Cooper,  15  Pick.  (Mass.)  276,  26  A.  D.  600. 


506  LAW  OF  EVIDENCE.  §   14gc 

state  of  facts  as  that  established  by  the  judgment.  The  form 
of  the  action  and  the  relief  asked  are  not  the  criterion.  The 
question  is,  does  the  subsequent  action  or  defense  rest  entirely 
on  the  same  right  or  state  of  facts  as  the  former  judgment? 
If  so,  the  judgment  is  a  bar."  Otherwise,  it  is  not  a  bar, 
though  it  may  be  competent  to  establish  the  matter  which  it 
determines. 

(c)  Identity  of  matter  in  dispute.  A  judgment  does  not 
work  an  estoppel  as  to  a  particular  matter  in  dispute  unless 
that  same  matter  was  in  dispute  in  the  former  action  also.100 

»9  A  judgment  may  be  a  bar  in  any  proceeding  where  the  same  right 
or  title  is  asserted,  even  though  the  cause  of  action  be  different.  Wat- 
son v.  Richardson,  110  Iowa,  698,  80  A.  S.  R.  331;  Martin  v.  Evans,  85 
Md.  8,  60  A.  S.  R.  292;  Hall  v.  Zeller,  17  Or.  381;  Jones  v.  Weathersbee, 
4  Strob.  (S.  C.)  50,  51  A.  D.  653;  Gallaher  v.  Moundsville,  34  W.  Va. 
730,  26  A.  S.  R.  942.  And  see  Cavanaugh  v.  Buehler,  120  Pa.  441,  457. 
And  even  though  the  subject-matter  of  the  two  suits  be  different. 
Baxter  v.  Myers,  85  Iowa,  328,  39  A.  S.  R.  298;  Hodge  v.  Shaw,  85  Iowa, 
137,  39  A.  S.  R.  290:  Furneaux  v.  First  Nat.  Bank,  39  Kan.  144,  7  A.  S. 
R.  541;  Young  v.  Brehe,  19  Nev.  379,  3  A.  S.  R.  892;  Doty  v.  Brown, 
4  N.  Y.  71,  53  A.  D.  350.  It  is  not  the  object  of  the  suit  or  the  recovery 
or  fruits  of  litigation  alone,  that  constitutes  the  bar,  but  the  facts  in 
issue  and  determined  as  the  basis  of  the  judgment.  Caperton  v. 
Schmidt,  26  Cal.  479,  85  A.  D.  187,  193;  Barker  v.  Cleveland,  19  Mich. 
230;  Burt  v.  Sternburgh,  4  Cow.  (N.  Y.)  559,  15  A.  D.  402;  Harrison 
v.  Wallton's  Ex'r,  95  Va.  721,  64  A.  S.  R.  830. 

100  UNITED  STATES:  Cromwell  v.  Sac  County,  94  U.  S.  351. 

ALABAMA:  Aderholdt  v.  Henry,  87  Ala.  415,  6  L.  R.  A.  451. 

CONNECTICUT:  Fuller  v.  Metropolitan  L.  Ins.  Co.,  68  Conn.  55,  57  A. 
S.  R.  84. 

ILLINOIS:   Smith  v.  Smith,  174  111.  52,  43  L.  R.  A.  403,  407. 

INDIANA:  Kenney  v.  Phillipy,  91  Ind.  511. 

KENTUCKY:  Mattox  v.  Helm,  5  Litt.  185,  15  A.  D.  64;  Newson  v. 
Lycan,  3  J.  J.  Marsh.  440,  20  A.  D.  156,  157. 

LOUISIANA:     Durham  v.  Williams,  32  La.  Ann.  968. 

MAINE:     Howard  v.  Kimball,  65  Me.  308. 

MARYLAND:   Hughes  v.  Jones,  2  Md.  Ch.  178. 

MISSOUBI:   Short  v.  Taylor,  137  Mo.  517,  59  A.  S.  R.  508. 

NEW  YORK:     Palmer  v.  Hussey,  87  N.  Y.  303. 


§  148d  ESTOPPEL  BY  RECORD.  507 

If,  for  example,  the  facts  on  which  the  judgment  rests  have 
changed  since  its  rendition,  as  where  the  case  is  ambulatory 
in  its  nature,  and  has  ceased  to  be  the  same  by  progression, 
or  if,  to  take  another  example,  new  rights  have  been  acquired 
since  the  judgment  was  rendered,  it  is  not  conclusive  of  those 
facts  or  rights  in  a  subsequent  suit.101 

(d)  Incidental  and  collateral  matters.  Generally  speaking, 
the  judgment  is  conclusive  only  of  those  facts  on  which  it  rests, 
and  without  which  it  could  not  have  been  rendered.102  It  has 
been  held,  however,  that  where  a  question  was  presented  by 
the  pleadings,  argued  by  counsel,  and  decided  by  the  court, 
the  question  becomes  res  judicata,  even  though  a  determina- 
tion of  it  was  not  strictly  necessary  to  a  determination  of  the 
suit.103 

The  judgment  does  not  work  an  estoppel  as  to  a  matter  un- 
less that  matter  was  directly  in  issue  in  the  former  action. 
Incidental  or  collateral  questions,  though  raised  and  deter- 
mined, are  not  concluded.104  "Any  fact  attempted  to  be  es- 

NOETH  CAROLINA:   Doe  d.  Stokes  v.  Fraley,  50  N.  C.  (5  Jones)  377. 
TENNESSEE:  Casey  v.  McFalls,  3  Sneed,  114. 

VERMONT:  Jericho  v.  Underbill,  67  Vt.  85,  48  A.  S.  R.  804;  Manley's 
Ex'r  v.  Staples,  62  Vt.  153,  8  L.  R.  A.  707. 

101  State  v.  Williams,  131  Ala.  56,  90  A.  S.  R.  17;  Ashford  v.  Prewitt, 
102  Ala.  264,  48  A.  S.  R.  37;  Erwin  v.  Garner,  108  Ind.  488;  Everitt  v. 
Everitt,  29  Ind.  App.  508,  94  A.  S.  R.  276;  Brown  v.  Roberts,  24  N.  H. 
131;  Burt  v.  Sternburgh,  4  Cow.  (N.  Y.)  559,  15  A.  D.  402;   Dewey  v.  St. 
Albans  T.  Co.,  60  Vt.  1,  6  A.  S.  R.  84. 

102  Watts  v.  Rice,  75  Ala,  289;  Pbelan  v.  Gardner,  43  Cal.  306;  Hunter 
v.  Davis,  19  Ga.  413;  Waite  v.  Teeters,  36  Kan.  604;  Burlen  v.  Shannon, 
99  Mass.  200,  96  AT.  D.  733;  Belknap  v.  Stewart,  38  Neb.  304,  41  A.  S.  R. 
729;  People  v.  Johnson,  38  N.  Y.  63,  97  A.  D.  770;  Lentz  v.  Wallace,  17 
Pa.  412,  55  A.  D.  569;  Church  v.  Chapin,  35  Vt.  223;  Bergeron  v.  Rich- 
ardott,  55  Wis.  129. 

103  Almy  v.  Daniels,  15  R.  I.  312. 

104  Rex  v.  Duchess  of  Kingston,  20  How.  State  Tr.  538,  2  Smith's  Lead. 
Cas.  (llth  Ed.)  731;  Hopkins  v.  Lee,  6  Wheat.  (U.  S.)  109;  Shall  v. 
Biscoe,  18  Ark.  142;  Wahle  v.  Wahle,  71  111.  510;  Land  v.  Keirn,  52  Miss. 


508  LAW   OF   EVIDENCE.  §   14ge 

tablished  by  evidence  and  controverted  by  the  adverse  party 
may  be  said  to  be  in  issue  in  one  sense.  As,  for  instance,  in 
an  action  of  trespass,  if  the  defendant  alleges  and  attempts 
to  prove  that  he  was  in  another  place  than  that  where  the 
plaintiff's  evidence  would  show  him  to  have  been  at  a  cer- 
tain time,  it  may  be  said  that  this  controverted  fact  is  a  mat- 
ter in  issue  between  the  parties.  This  may  be  tried,  and  may 
be  the  only  matter  put  in  controversy  by  the  evidence  of  the 
parties.  But  this  is  not  the  matter  in  issue,  within  the  mean- 
ing of  the  rule  [of  res  judicata].  It  is  that  matter  upon  which 
the  plaintiff  proceeds  by  his  action,  and  which  the  defendant 
controverts  by  his  pleadings,  which  is  in  issue.  *  *  * 
Facts  offered  in  evidence  to  establish  the  matters  in  issue  are 
not  themselves  in  issue,  within  the  meaning  of  the  rule,  al- 
though they  may  be  controverted  on  the  trial."105 

While  the  fact  must  have  been  directly  in  issue,  yet,  by  the 
better  opinion,  it  need  not  have  been  specifically  put  in  issue  by 
the  pleadings.106  If  the  pleadings  do  not  show  it  specifically, 
extrinsic  evidence  is  admissible  to  show  what  was  in  issue, 
and  thereby  to  make  the  pleadings  as  if  they  were  special.107 

(e)  Necessity  of  actual  determination.  It  is  commonly  said 
that  when  a  former  judgment  is  set  up  as  a  bar  to  the  whole 
controversy,  it  is  immaterial  that  the  particular  claim  asserted 

341;  Fish  v.  Lightner,  44  Mo.  268;  Lawrence  v.  Hunt,  10  Wend.  (N.  Y.) 
80,  25  A.  D.  539;  Wood  v.  Jackson,  8  Wend.  (N.  Y.)  9,  22  A.  D.  603; 
Cavanaugh  v.  Buehler,  120  Pa.  441;  Henry  v.  Davis,  13  W.  Va.  230; 
Williams  v.  Williams,  63  Wis.  58,  53  A.  R.  253. 

105  King  v.  Chase,  15  N.  H.  9,  41  A.  D.  675,  678.  Contra,  Wood  v.  Jack- 
son, 8  Wend.  (N.  Y.)  9,  22  A.  D.  603,  620. 

IDC  Trayhern  v.  Colburn,  66  Md.  277;  Eastman  v.  Cooper,  15  Pick. 
(Mass.)  276,  26  A.  D.  600,  604;  King  v.  Chase,  15  N.  H.  9,  41  A.  D.  675, 
678,  681.  And  see  Babcock  v.  Camp,  12  Ohio  St.  11.  Contra,  Fuller  v. 
Metropolitan  L.  Ins.  Co.,  68  Conn.  55,  57  A.  S.  R.  84,  89  (semble); 
Stapleton  v.  Dee,  132  Mass.  279,  282. 

lorsee  §  148 (f),  infra. 


§   148e  ESTOPPEL   BY   RECORD.  509 

in  the  later  suit  was  not  determined  in  the  former  action, 
provided  that  that  claim  might  have  been  presented  there  as  a 
ground  of  recovery  or  defense  ;108  but  that  when  the  judgment 
is  offered,  not  as  a  bar,  but  only  as  establishing  a  particular 
right  or  fact  not  in  itself  constituting  a  ground  of  action  or 
defense  in  the  later  action,  there  must  have  been  an  actual 
determination  of  that  right  or  fact  in  the  former  suit;  that 
it  is  not  sufficient  to  work  an  estoppel  under  these  circum- 
stances that  the  right  or  fact  might  properly  have  been  raised 
and  decided  in  the  former  suit,  but  that  it  must  in  fact  have 
been  determined  there.100  This  statement  is  true  so  far  as  it 
concerns  the  judgment  as  a  bar,  but  otherwise  it  is  only  par- 
tially true. 

If  the  right  or  fact  actually  determined  by  a  judgment  comes 
in  question  in  a  subsequent  suit,  the  parties  are  precluded  from 
asserting  anything  against  that  right  or  fact  which  might 
properly  have  been  advanced  against  it  in  the  prior  suit, 
whether  it  was  so  advanced  or  not,  and  this  is  true,  whether 
the  judgment  is  offered  as  a  bar  or  otherwise.  In  this  event 
it  is  sufficient  to  create  an  estoppel  against  the  derogatory 
matter  that  the  right  or  fact  in  issue  in  the  later  suit  was 
actually  determined  in  the  former  action,  even  though,  be- 
cause of  different  issues,  the  later  suit  is  not  barred  by  the 
judgment.110  Suppose,  for  instance,  that  a  judgment  estab- 

108  Cromwell  v.  Sac   County,  94  U.  S.  351;   Columb  v.  Webster  Mfg. 
Co.,  50  U.  S.  App.  264,  84  Fed.  592,  43  L.  R.  A.  195;  Harmon  v.  Auditor 
of  Public  Accounts,  123  111.  122,  5  A.  S.  R.  502;  Hanna  v.  Read,  102  111. 
596,  40  A.  R.  608,  611;  O'Brien  v.  Manwaring,  79  Minn.  86,  79  A.  S.  R. 
426;  White  v.  Ladd,  41  Or.  324,  93  A.  S.  R.  732. 

109  Cromwell  v.  Sac  County,  94  U.  S.  351;   Freeman  v.  Barnum,  131 
Cal.  386,  82  A.  S.  R.  355;  Brady  v.  Pryor,  69  Ga.  691;  Adams  v.  Yazoo 
&  M.  V.  R.  Co.,  77  Miss.  194,  60  L.  R.  A.  33,  84;  Applegate  v.  Dowell,  15 
Or.  513;   Pitts  v.  Oliver,  13  S.  D.  561,  79  A.  S.  R.  907.     See  Sloan  v. 
Price,  84  Ga.  171. 

no  Marion  County  Com'rs  v.  Welch.  40  Kan.  767. 


510  LAW    OF  EVIDENCE.  §   14ge 

lishes  a  title  in  the  defendant,  and  that  in  a  subsequent  suit 
by  the  plaintiff  against  the  defendant  the  title  comes  in  ques- 
tion, not  as  founding  the  cause  of  action,  but  only  incidentally. 
In  this  case  the  judgment  cannot  operate  as  a  bar  because  the 
entire  controversy  was  not  in  issue  in  the  former  suit,  but  the 
defendant  may,  of  course,  offer  the  judgment  in  evidence  as 
establishing  his  title.  In  this  event  the  judgment  establishes 
that  title,  and  estops  the  plaintiff  from  setting  up  against  it 
anything  which  he  might  have  urged  against  it  in  the  former 
action.  To  this  extent,  therefore,  it  is  wrong  to  say  that  a 
judgment  not  operating  as  a  bar  does  not  work  an  estoppel 
as  to  a  particular  matter  unless  that  matter  was  actually  de- 
termined in  the  former  suit.  That  statement,  as  will  next 
appear,  applies  only  to  cases  where  the  right  or  fact  actually 
determined  by  the  judgment  is  not  in  issue  in  the  subsequent 
suit. 

If  a  right  or  fact  is  actually  determined  by  a  judgment,  and, 
in  a  later  suit  not  barred  by  the  judgment,  the  parties  take 
issue,  not  on  that  right  or  fact,  but  on  some  matter  which 
might  properly  have  been  advanced  against  it  in  the  prior 
suit,  then  in  this  event  there  must  have  been  an  actual  deter- 
mination of  the  derogatory  matter,  unless  a  determination  oi 
it  was  necessarily  involved  in  the  decision.111  In  this  case  it 
is  not  sufficient  to  create  an  estoppel  against  the  derogatory 
matter  that  it  might  properly  have  been  litigated  and  decided 
in  the  former  action.  It  must  actually  have  been  determined 
there.  To  this  extent,  therefore,  and  to  this  extent  only,  it  is 
correct  to  say  that  a  judgment  not  operating  as  a  bar  does 
not  work  an  estoppel  as  to  a  particular  matter  unless  that 
matter  was  actually  determined  in  the  former  suit. 

Subject  to  the  foregoing  discussion,  and  an  apparent  quali- 
fication to  be  noticed,  it  may  be  announced  as  a  general  rule 

111  See  page  511,  infra. 


§   I486  ESTOPPEL   BY   RECORD.  51 1 

that  a  judgment  does  not  work  an  estoppel  except  as  to  mat- 
ters actually  litigated  and  decided.112  So,  if  it  affirmatively 
appears  that  a  matter  in  question  in  a  later  suit  was  not  de- 
termined by  the  judgment,  it  creates  no  estoppel.118  And  if, 
from  the  nature  of  the  case,  the  form  of  the  action,  or  the 
character  of  the  pleadings,  a  given  question  could  not  properly 
have  been  decided  in  the  former  action,  the  judgment  therein 
is  not  conclusive  of  that  question.114 

An  apparent  qualification  of  the  rule  requiring  an  actual 
decision  is  that  matters  necessarily  adjudicated  in  arriving  at 
the  decision  are  concluded  by  the  judgment.  Where  an  indis- 
putable conclusion  could  have  been  drawn  only  from  certain 
premises,  the  premises  are  equally  indisputable  with  the  con- 
clusion.115 If  the  determination  of  a  matter  can  be  gathered 
from  the  judgment  only  by  argument  or  inference  or  con- 
struction, however,  an  estoppel  does  not  arise  as  to  that  mat- 
ter.116 

"2  Eastman  v.  Cooper,  15  Pick.  (Mass.)  276.  26  A.  D.  600,  605;  Sher- 
man v.  Dilley,  3  Nev.  21;  Malloney  v.  Koran,  49  N.  Y.  Ill,  10  A.  R.  335; 
Campbell  v.  Consalus,  25  N.  Y.  613;  Sweet  v.  Tuttle,  14  N.  Y.  465; 
Mason  v.  Alston,  9  N.  Y.  28,  59  A.  D.  515;  Howe  v.  First  Nat.  Bank 
(Pa.)  1  Atl.  787;  Hunter  v.  Hunter,  63  S.  C.  78,  90  A.  S.  R.  663. 

"sBentley  v.  O'Bryan,  111  111.  53;  Nashua  &  L.  R.  Corp.  v.  Boston 
&  L.  R.  Corp.,  164  Mass.  222,  49  A.  S.  R.  454;  Snxoot  v.  Judd,  161  Mo.  673, 
84  A.  S.  R.  738. 

114  Gordon  v.  Kennedy,  36  Iowa,  167;  Petrie  v.  Badenoch,  102  Mich. 
45,  47  A.  S.  R.  503;  Hymes  v.  Estey,  116  N.  Y.  501,  15  A.  S.  R.  421; 
Embury  v.  Conner,  3  N.  Y.  511,  53  A.  D.  325;  Adams  v.  Church,  42  Or. 
270,  59  L.  R.  A.  782;  Bensimar  v.  Fell,  35  W.  Va.  15,  29  A.  S.  R.  774,  779. 

us  Chamberlain  v.  Gaillard,  26  Ala.  504;  Hayes  v.  Shattuck,  21  Cal. 
51;  Sly  v.  Hunt,  159  Mass.  151,  38  A.  S.  R.  403;  Burlen  v.  Shannon, 
99  Mass.  200,  96  A.  D.  733,  736;  Cutter  v.  Butler,  25  N.  H.  343,  57  A.  D. 
330. 

no  Rex  v.  Duchess  of  Kingston,  20  How.  State  Tr.  538,  2  Smith's 
Lead.  Gas.  (llth  Ed.)  731;  Hopkins  v.  Lee,  6  Wheat.  (U.  S.)  109;  Mc- 
Cravey  v.  Remson,  19  Ala.  430,  54  A.  D.  194;  Shall  v.  Biscoe,  18  Ark. 
142;  Dickinson  v.  Hayes,  31  Conn.  417;  Wahle  v.  Wahle,  71  111.  510; 


512  LAW   OF   EVIDENCE.  §   148f 

(f)  Evidence  of  identity.  It  is  not  necessary  that  the  rec- 
ord in  the  former  action  should  show  that  the  fact  in  ques- 
tion was  determined  there.  If  the  form  of  the  action  and 
the  pleadings  are  such  that  the  fact  in  question  might  properly 
have  been  decided  in  the  former  suit,  the  determination  of 
it  in  fact  may  be  shown  by  evidence  aliunde.  Extrinsic  evi- 
dence is  competent  to  identify  the  issues  in  the  two  suits.117 
Extrinsic  evidence  is  admissible,  also,  to  show  that  the  fact  in 
question,  though  it  might  have  been,  was  not  in  truth,  de- 
termined, and  that  the  judgment  was  rested  on  another 
ground.118 

Lawrence  v.  Hunt,  10  Wend.  (N.  Y.)  80,  25  A.  D.  539;  Bennett  v. 
Holmes,  18  N.  C.  (I  Dev.  &  B.)  486. 

117  UNITED  STATES:     Wilson's  Ex'r  v.  Been,  121  U.  S.  525. 

ALABAMA:   Chamberlain  v.  Gaillard,  26  Ala.  504. 

CONNECTICUT:     Supples  v.  Cannon,  44  Conn.  424. 

ILLINOIS:     Gray  v.  Gillilan,  15  111.  453,  60  A.  D.  761. 

IOWA:     State  v.  Meek,  112  Iowa,  338,  51  L.  R.  A.  414. 

MAINE:     Lander  v.  Arno,  65  Me.  28. 

MARYLAND:     Hughes  v.  Jones,  2  Md.  Ch.  178. 

MASSACHUSETTS:  Sawyer  v.  Woodbury,  7  Gray,  499,  66  A.  D.  518; 
Eastman  v.  Cooper,  15  Pick.  276,  26  A.  D.  600,  605. 

MISSOURI:     Short  v.  Taylor,  137  Mo.  517,  59  A.  S.  R.  508. 

NEBRASKA:     Slater  v.  Skirving,  51  Neb.  108,  66  A.  S.  R.  444. 

NEVADA:     Sherman  v.  Dilley,  3  Nev.  21. 

NEW  HAMPSHIRE:     King  v.  Chase,  15  N.  H.  9,  41  A.  D.  675. 

NEW  YORK:  Lawrence  v.  Hunt,  10  Wend.  80,  25  A.  D.  539,  541;  Wood 
v.  Jackson,  8  Wend.  9,  22  A.  D.  603,  620. 

NORTH  DAKOTA:  Fahey  v.  Esterley  Mach.  Co.,  3  N.  D.  220,  44  A.  S. 
R.  554. 

TEXAS:  Oldham  v.  Mclver,  49  Tex.  556,  572;  Foster  v.  Wells,  4  Tex. 
101. 

VERMONT:     Perkins  v.  Walker,  19  Vt.  144. 

WISCONSIN:     Driscoll  v.  Damp,  16  Wis.  106. 

Contra,  Sintzenick  v.  Lucas,  1  Esp.  43;  Smith  v.  Sherwood,  4  Conn. 
276,  10  A.  D.  143. 

us  Bottorff  v.  Wise,  53  Ind.  32;  Cunningham  v.  Foster,  49  Me.  68; 
Bridge  v.  Gray,  14  Pick.  (Mass.)  55,  25  A.  D.  358;  Dunlap  v.  Edwards, 
29  Miss.  41;  Sweet  v.  Maupin,  65  Mo.  65;  Phillips  v.  Berick,  16  Johns. 


§  148h  ESTOPPEL  BY  RECORD.  513 

Extrinsic  evidence  is  thus  admissible,  however,  only  where 
it  is  consistent  with  the  record.  It  is  competent  only  to  dispel 
obscurity  or  ambiguity  in  the  record,  or  to  supply  its  omissions 
and  make  specific  what  is  expressed  in  it  in  general  terms. 
Extrinsic  evidence  is  not  competent  to  contradict  or  to  vary 
the  record.119  Thus,  parol  evidence  is  not  admissible  to  extend 
the  scope  of  the  estoppel  beyond  the  limits  of  those  questions 
which,  in  view  of  the  form  of  the  action  or  the  pleadings, 
might  have  been  raised  and  determined  in  the  former  suit.120 
Nor  is  it  admissible  to  limit  the  scope  of  the  estoppel  by  show- 
ing that  questions  which  the  record  shows  to  have  been  in  is- 
sue were  not  in  truth  passed  upon.121 

(g)  Burden  of  proof.  If  the  record  does  not  show  on  its 
face  that  the  fact  in  question  was  determined  by  the  judg- 
ment, the  party  urging  the  estoppel  carries  the  burden  of 
proving  the  determination  of  it.122 

(h)  Province  of  court  and  of  jury.  If  the  question  of  the 
identity  of  the  issues  in  the  two  suits  depends  upon  a  con- 
struction of  the  record  alone,  it  is  one  for  the  court;123  but 

(N.  Y.)  136,  8  A.  D.  299;  Davis  v.  Talcott,  14  Barb.  (N.  Y.)   611;  Fol- 
lansbee  v.  Walker,  74  Pa.  306;  Parks  v.  Moore,  13  Vt.  183,  37  A.  D.  589. 
«»  Bailey  v.  Dilworth,  10  Smedes  &  M.   (Miss.)   404,  48  A.  D.  760; 
Slater  v.  Skirving,  51  Neb.  108,  66  A.  S.  R.  444. 

120  Meredith  v.  Santa  Clara  Min.  Ass'n,  56  Cal.  178;  Jones  v.  Perkins, 
54  Me.  393;  Campbell  v.  Butts,  3  N.  Y.  173;  Manny  v.  Harris,  2  Johns. 
(N.  Y.)  24,  3  A.  D.  386,.  389. 

121  Underwood  v.  French,  6  Or.  66,  25  A.  R.  500;  Freeman  v.  McAninch, 
87  Tex.  132,  47  A.  S.  R.  79. 

122  Russell  v.  Place,  94  U.  S.  606;   Hanchey  v.  Coskrey,  81  Ala.  149, 
151;  Lea  v.  Lea,  99  Mass.  493,  96  A.  D.  772;   Sawyer  v.  Woodbury,  7 
Gray  (Mass.)  499,  66  A.  D.  518;  Slater  v.  Skirving,  51  Neb.  108,  66  A. 
S.   R.   444;    Lawrence  v.   Hunt,   10   Wend.    (N.  Y.)    80,   25   A.   D.   539, 
542;  Chrisman's  Adm'x  v.  Harman,  29  Grat.  (Va.)  494.     See,  however, 
Hollis  v.  Morris,  2  Har.  (Del.)  128;  White  v.  Simonds,  33  Vt.  178,  78  A. 
D.  620. 

123  Young  v.  Byrd,  124  Mo.  590,  46  A.  S.  R.  461;  Ehle  v.  Bingham,  7 

Hammon,  Ev. — 33. 


514  LAW  OF  EVIDENCE.  §   149 

if  it  depends  upon  extrinsic  evidence,  it  is  generally  a  ques- 
tion for  the  jury.124 

ART.   III.     ESTOPPEL   BY   DEED. 

General  considerations,  §  149. 
Estoppel  as  to  pre-existing  title,  §  150. 

(a)  Grantor. 

(b)  Grantee. 

Estoppel  as  to  after-acquired  title,  §  151. 

(a)  General  rule. 

(b)  Necessity  and  effect  of  covenants  for  title. 

(c)  Estoppel  as  conveyance  of  title. 
Estoppel  as  to  facts  recited,  §  152. 

(a)  Recitals  binding  grantee. 

(b)  Recitals  of  conclusions  of  law. 

(c)  Certainty — General  and  particular  recitals. 

(d)  Materiality — Collateral  matters. 

Persons  estopped  and  entitled  to  urge  estoppel,  §  153. 

(a)  Parties  to  deed. 

(b)  Privies. 

(c)  Strangers  to  deed — Mutuality  of  estoppel. 
Execution,  validity,  and  construction  of  deed,  §  154. 

(a)  Execution,  delivery,  and  acceptance. 

(b)  Modification. 

(c)  Validity. 

(d)  Construction — Truth  appearing  on  face  of  deed. 

Estoppel  against  estoppel,  §  155. 

§  149.    General  considerations. 

Estoppel  by  deed  is  a  bar  which  precludes  a  party  from 
asserting  a  right  or  title,  whether  pre-existing  or  after-ac- 
quired, in  derogation  of  the  instrument,  or  from  denying  any 
matter  of  fact  recited  in  the  deed.  This  form  of  estoppel, 
like  all  others,  is  based  on  rules  of  substantive  law  which  rest 

Barb.  (N.  Y.)  494;  Finley  v.  Hanbest,  30  Pa.  190;  Coulter  v.  Davis,  13 
Lea  (Tenn.)   451. 

i24Amsden  v.  Dubuque  &  S.  C.  R.  Co.,  32  Iowa,  288;  Whitehurst  v. 
Rogers,  38  Md.  503;  Rockwell  v.  Langley,  19  Pa.  502. 


§  150b  ESTOPPEL  BY  RECORD.  515 

on  reasons  of  justice  or  policy.  Properly  speaking,  it  does  not 
relate  to  the  law  of  evidence.  Like  the  so-called  conclusive 
presumptions  of  law,  it  rests  on  rules  of  substantive  law  which 
declare  the  legal  insignificance  of  the  right,  title,  or  fact 
sought  to  be  asserted  in  opposition  to  the  terms  of  the  deed.125 

§  150.    Estoppel  as  to  pre-existing  title. 

(a)  Grantor.     A  grantor  is  estopped  to  assert  any  pre-exist- 
ing right  or  title  in  derogation  of  his  deed.126     This  is  un- 
doubtedly true  if  the  deed  contains  covenants  for  title,127  but 
technical  covenants  for  title  are  not  indispensable  to  create 
the  estoppel.    If  the  deed  bears  on  its  face  evidence  that  the 
grantor  intended  to  convey,  and  that  the  grantee  expected  to 
become  invested  with,  an  estate  of  a  particular  description  or 
quality,  and  that  the  bargain  proceeded  upon  that  footing, 
the  deed  creates  an  estoppel,  although  it  contains  no  covenants 
for  title.128 

(b)  Grantee.     Subject  to  several  exceptions,  neither  a  gran- 
tee nor  one  claiming  under  him  is  estopped  to  deny  the  gran- 
ts Mutual  Life  Ins.  Co.  v.  Corey,  135  N.  Y.  326. 

126  Dodge  v.  Walley,  22  Cal.  224,  83  A.  D.  61;  Morris  v.  Wheat,  8  App. 
D.  C.  379;  Turner  v.  Thompson,  58  Ga.  268,  24  A.  R.  497;  Needham  v. 
Clary,  62  111.  344;  Durham  v.  Alden,  20  Me.  228,  37  A.  D.  48;  Thompson 
v.  Thompson,  19  Me.  235,  36  A.  D.  751;   Comstock  v.  Smith,  13  Pick. 
(Mass.)  116,  23  A.  D.  670;  De  Rochemont  v.  B.  &  M.  R.,  64  N.  H.  500; 
Jackson  v.  Demont,  9  Johns.  (N.  Y.)  55,  6  A.  D.  259;  Rogers  v.  Cawood, 
1  Swan  (Tenn.)  142,  55  A.  D.  729;  Richardson  v.  Powell,  83  Tex.  588; 
7  Current  Law,  1489. 

This  applies  to  mortgagors.  Sutline  v.  Jones,  61  Ga.  676;  Hoppin  v. 
Hoppin,  96  111.  265;  .Nash  v.  Spofford,  10  Mete.  (Mass.)  192,  43  A.  D.  425; 
Carbrey  v.  Willis,  7  Allen  (Mass.)  364,  83  A.  D.  688;  Cuthrell  v.  Haw- 
kins, 98  N.  C.  203.  And  it  applies  to  mortgagors  of  personalty,  as 
well  as  of  realty.  Harvey  v.  Harvey,  13  R.  I.  598. 

127  McManness  v.  Paxson,  37  Fed.  296;   Drake  v.  Root,  2  Colo.  685; 
Cross  v.  Robinson,  21  Conn.  379. 

128  Wells  v.  Steckelberg,  52  Neb.  597,  66  A.  S.  R.  529;  Bayley  v.  Mc- 
Coy, 8  Or.  259. 


516  LAW   OF  EVIDENCE.  §    151 

tor's  title.129  He  may,  for  example,  claim  a  paramount  title 
under  a  conveyance  from  another  grantor.130  However,  one 
who  accepts  a  deed  with  covenants  of  seisin  is  estopped  to  as- 
sert that  he  himself  was  seised  at  the  time  of  the  convey- 
ance,131 and  under  some  circumstances  the  grantee  may  be  es- 
topped by  recitals  in  the  deed  from  disputing  his  grantor's  ti- 
tle.132 

§  151.    Estoppel  as  to  after-acquired  title. 

(a)  General  rule.  An  estate  by  estoppel  arises,  generally 
speaking,  in  cases  where  a  person  without  title  makes  a  con- 
veyance of  land  by  deed  with  warranty,  and  subsequently,  by 
descent  or  by  purchase,  acquires  the  ownership.  This  after- 
acquired  title  of  the  grantor  "inures,"  it  is  usual  to  say,  by 
estoppel  to  the  benefit  of  the  grantee.133  The  doctrine  of  title 

129  Grosholz  v.  Newman,  21  Wall.  (U.  S.)  481;  Cannon  v.  Stockmon, 
36  Cal.  535,  95  A.  D.  205;  Kansas  Pac.  R.  Co.  v.  Dunmeyer,  24  Kan.  725; 
Winlock  v.  Hardy,  4  Litt.  (Ky.)  272;  Macklot  v.  Dubreuil,  9  Mo.  473, 
43  A.  D.  550;  Osterhout  v.  Shoemaker,  3  Hill  (N.  Y.)  513;  7  Current 
Law,  1489. 

A  grantee  is  not  in  privity  with  his  grantor,  so  as  to  be  bound  by 
an  estoppel  against  the  latter.  Section  153 (b),  infra. 

iso  Blight's  Lessee  v.  Rochester,  7  Wheat.  (U.  S.)  535;  Casey's  Lessee 
v.  Inloes,  1  Gill  (Md.)  430,  39  A.  D.  658;  Cummings  v.  Powell,  97  Mo. 
524,  536. 

isiFurness  v.  Williams,  11  111.  229;  Fitch  v.  Baldwin,  17  Johns.  (N. 
Y.)  161.  See,  however,  Thompson  v.  Thompson,  19  Me.  235,  36  A.  D. 
751. 

132  Section  152 (a),  infra. 

issBigelow,  Estop.  (5th  Ed.)  384. 

CANADA:     Robertson  v.  Daley,  11  Ont.  352. 

UNITED  STATES:  Jenkins  v.  Collard,  145  U.  S.  546;  Irvine  v.  Irvine,  9 
Wall.  617. 

ALABAMA:     Kennedy  v.  McCartney's  Heirs,  4  Port.  141. 

CALIFORNIA:  De  Frieze  v.  Quint,  94  Cal.  653,  28  A.  S.  R.  151; 
Klumpke  v.  Baker,  68  Cal.  559. 

DELAWAEE:     Doe  d.  Potts  v.  Dowdall,  3  Houst.  369,  11  A.  R.  757. 

GEOBGIA:  Terry  v.  Rodahan,  79  Ga.  278,  11  A.  S.  R.  420  (statute); 
Doe  d.  O'Bannon  v.  Paremour,  24  Ga.  489. 


§   151a  ESTOPPEL  BY  DEED.  517 

by  estoppel  has  been  held  applicable  to   personal   property 

ILLINOIS:  Whitson  v.  Grosvenor,  170  111.  271;  Wadhams  v.  Swan,  109 
111.  46;  Jones  v.  King,  25  111.  383. 

IOWA:  Nicodemus  v.  Young,  90  Iowa,  423;  Childs  v.  McChesney,  2t) 
Iowa,  431,  89  A.  D.  545. 

KANSAS:     Scofflns  v.  Grandstaff,  12  Kan.  467. 

KENTUCKY:  Perkins  v.  Coleman,  90  Ky.  611;  Fitzhugh's  Heirs  v. 
Tyler,  9  B..Mon.  559;  Morrison  v.  Caldwell,  5  T.  B.  Mon.  426,  17  A. 
D.  84. 

MAINE:     Baxter  v.  Bradbury,  20  Me.  260,  37  A.  D.  49. 

MASSACHUSETTS:  Blanchard  v.  Ellis,  1  Gray,  195,  61  A.  D.  417;  Trull 
v.  Eastman,  3  Mete.  121,  37  A.  D.  126. 

MINNESOTA:     Mankato  v.  Willard,  13  Minn.  1,  97  A.  D.  208  (semble). 

MISSISSIPPI:     Andrews  v.  Anderson,  16  So.  346. 

MISSOURI:  Johnson  v.  Johnson,  170  Mo.  34,  59  L.  R.  A.  748;  Ford 
v.  Unity  Church  Soc.,  120  Mo.  498,  41  A.  S.  R.  711. 

NEW  HAMPSHIBE:     Kimball  v.  Blaisdell,  5  N.  H.  533,  22  A.  D.  476. 

NEW  JERSEY  :  Moore  v.  Rake,  26  N.  J.  Law,  574 ;  Brundred  v.  Walker, 
12  N.  J.  Eq.  140. 

NEW  YORK:     Utica  Bank  v.  Mersereau,  3  Barb.  Ch.  528,  49  A.  D.  189. 

NORTH  CAROLINA:     Bell  v.  Adams,  81  N.  C.  118. 

OHIO:     Hart  v.  Gregg,  32  Ohio  St.  502. 

OREGON:     Wilson  v.  McEwan,  7  Or.  87. 

PENNSYLVANIA:  Brown  v.  McCormick,  6  Watts,  60,  31  A.  D.  450; 
McPherson  v.  Cunliff,  11  Serg.  &  R.  422,  14  A.  D.  642;  McWilliams  v. 
Nisly,  2  Serg.  &  R.  507,  7  A.  D.  654. 

SOUTH  DAKOTA  :     Johnson  v.  Brauch,  9  S.  D.  116,  62  A.  S.  R.  857. 

TENNESSEE:     Woods  v.  Bonner,  89  Tenn.  411. 

TEXAS:     Stone  v.  Sledge,  87  Tex.  49,  47  A.  S.  R.  65. 

VIRGINIA:  Gregory  v.  Peoples,  80  Va.  355;  Doswell  v.  Buchanan's 
Ex'rs,  3  Leigh,  365,  23.  A.  D.  280. 

WEST  VIRGINIA:  Buford  v.  Adair,  43  W.  Va.  211,  64  A.  S.  R.  854; 
Mitchell  v.  Petty,  2  W.  Va.  470,  98  A.  D.  777. 

WISCONSIN:     North  v.  Henneberry,  44  Wis.   306. 

This  rule  applies  to  leases  made  by  one  without  title.  Trevivan  v. 
Lawrance,  1  Salk.  276,  6  Mod.  256,  2  Ld.  Raym.  1036;  Clark  v.  Baker, 
14  Cal.  612,  76  A.  D.  449,  451  (semble) ;  McKenzie  v.  Lexington,  4  Dana 
(Ky.)  129.  But  only  to  a  limited  extent.  Doe  d.  Strode  v.  Seaton,  2 
Cromp.,  M.  &  R.  728;  Langford  v.  Selmes,  3  Kay  &  J.  220. 

The  rule  applies  also  to  mortgages  made  by  one  without  title.  Kirk- 
aldie  v.  Larrabee,  31  Cal.  455,  89  A.  D.  205  (statute);  Clark  v.  Baker, 
14  Cal.  612,  76  A.  D.  449;  Thalls  v.  Smith,  139  Ind.  496;  Kelley  v.  Jen- 


518  LAW  OP  EVIDENCE.  §   15lb 

transferred  with  warranty,  express  or  implied,  by  one  without 
title.134 

The  title  which  the  grantor  is  thus  estopped  to  assert,  it 
should  be  observed,  is  a  paramount  title  outstanding  in  a 
third  person  at  the  time  the  conveyance  is  made.  The  grantor 
is  not  estopped  from  asserting  a  title  subsequently  acquired 
immediately  or  mediately  from  the  grantee,  either  by  pur- 
chase, involuntary  sale,  or  adverse  possession.135 

(b)  Necessity  and  effect  of  covenants  for  title.  To  work 
an  estoppel,  the  deed  must  contain  either  a  covenant  for  title 
or  an  express  or  implied  recital  that  the  grantor  is  seised  of 
the  estate  attempted  to  be  conveyed.  In  the  absence  of  one  or 

ness,  50  Me.  455,  79  A.  D.  623;  Ayer  v.  Phila.  &  B.  Face  Brick  Co.,  157 
Mass.  57;  Haney  v.  Roy,  54  Mich.  635;  Philly  v.  Sanders,  11  Ohio  St. 
490,  78  A.  D.  316;  Graham  v.  Meek,  1  Or.  325;  Rauch  v.  Dech,  116  Pa. 
157,  2  A.  S.  R.  598;  Bradford  v.  Burgess,  20  R.  I.  290. 

"It  would  perhaps  more  accurately .  state  the  situation,  under  our 
modern  deeds  of  conveyance,  to  say  that  the  deed,  which  the  grantor 
engages  to  warrant  and  defend,  is  a  solemn  stipulation  that  the  grantor 
has  the  title  which  he  is  now  about  to  transfer  to  the  grantee  as  a 
purchaser  for  value.  In  the  face  of  this  he  cannot  be  heard  to  say, 
after  making  the  transfer,  that  he  had  not  that  title  at  the  time.  So 
his  new  title  lies  lifeless  in  his  hands  against  such  purchaser;  the 
estoppel  not  being  a  true  conveyance."  Bigelow,  Estop.  384,  413  et  seq. 

134  Gottfried  v.  Miller,  104  U.  S.  521;   Dorsey  v.  Gassaway,  2  Har.  & 
J.  (Md.)  402,  3  A.  D.  557;  Clark  v.  Slaughter,  34  Miss.  65;  Gardiner  v. 
Suydam,  7  N.  Y.  357,  363  (semble) ;  Frazer  v.  Hilliard,  2  Strob.  (S.  C.) 
309. 

This  view  has  been  criticised,  however.  See  Bigelow,  Estop.  (5th  Ed.) 
446. 

135  Doolittle  v.  Robertson,  109  Ala.  412;  Franklin  v.  Borland,  28  Cal. 
175,  87  A.  D.  Ill;   Smiley  v.  Fries,  104  111.  416;   Jones  v.  King,  25  111. 
383;   Ervin  v.  Morris,  26  Kan.  664;   Berthelemy  v.  Johnson,  3  B.  Mon. 
(Ky.)  90,  38  A.  D.  179;   Hines  v.  Robinson,  57  Me.  324,  99  A.  D.  772; 
Stearns  v.  Hendersass,  9  Cush.    (Mass.)    497,   57  A.  D.  65;    Thielen  v. 
Richardson,  35  Minn.  509;   Sherman  v.  Kane,  86  N.  Y.  57;   Cuthrell  v. 
Hawkins,  98  N.  C.  203;  Rauch  v.  Dech,  116  Pa,  157,  2  A.  S.  R.  598;  Fos- 
ter v.  Johnson,  89  Tex.  640;   Harn  v.  Smith,  79  Tex.  310,  23  A.  S.  R. 
340. 


§   151b  ESTOPPEL  BY  DEED.  519 

the  other  of  these,  an  estoppel  does  not  arise.136  It  is  some- 
times said,  indeed,  that  no  estoppel  arises  unless  the  deed  con- 
tains a  covenant  of  warranty.137  In  some  states,  however,  the 
same  effect  has  been  given  to  the  covenant  of  seisin  or  right  to 
convey,138  the  covenant  for  quiet  enjoyment,138  and,  in  equity 
at  least,  to  the  covenant  for  further  assurance.140  Moreover, 
an  estoppel  may  arise,  even  though  the  deed  contains  no  tech- 
nical covenants  whatever.  If  the  deed  bears  on  its  face  evi- 
dence that  the  grantor  intended  to  convey,  and  that  the 
grantee  expected  to  become  invested  with,  an  estate  of  a  par- 
ticular description  or  quality,  and  that  the  bargain  proceeded 

ise  Clark  v.  Baker,  14  Cal.  612,  76  A.  D.  449,  453  (semble) ;  Frink  v. 
Darst,  14  111.  304,  58  A.  D.  575,  578;  Partridge  v.  Patten,  33  Me.  483, 
54  A.  D.  633;  Comstock  v.  Smith,  13  Pick.  (Mass.)  116,  23  A.  D.  670; 
Smith  v.  De  Russy,  29  N.  J.  Eq.  407;  Oliphant  v.  Burns,  146  N.  Y.  218, 
233;  Jackson  v.  Littell,  56  N.  Y.  108; -Jackson  d.  McCrackin  v.  Wright, 
14  Johns.  (N.  Y.)  193;  Hart  v.  Gregg,  32  Ohio  St.  502;  Kinsman's  Les- 
see v.  Loomis,  11  Ohio,  475. 

In  some  states  the  rule  laid  down  in  the  text  has  been  altered  by 
statute  so  far  as  deeds  purporting  to  convey  a  fee  simple  absolute  are 
concerned.  See,  for  example,  Holland  v.  Rogers,  33  Ark.  251;  Clark  v. 
Baker,  14  Cal.  612,  76  A.  D.  449. 

A  covenant  against  incumbrances,  of  course,  estops  the  grantor 
from  asserting  a  title  subsequently  acquired  under  a  pre-existing  in- 
cumbrance.  Coleman  v.  Bresnaham,  54  Hun  (N.  Y.)  619. 

137  Consolidated  R.  M.  Min.  Co.  v.  Lebanon  Min.  Co.,  9  Colo.  343; 
Weed  Sew.  Mach.  Co.  v.  Emerson,  115  Mass.  554;  Pelletreau  v.  Jack- 
son, 11  Wend.  (N.  Y.)  110. 

iss  Irvine  v.  Irvine,  9'Wall.  (U.  S.)  617  (semble);  Smith  v.  Williams, 
44  Mich.  240  (semble) ;  Wightman  v.  Reynolds,  24  Miss.  675.  Contra, 
Allen  v.  Say  ward,  5  Me.  227,  17  A.  D.  221;  Doane  v.  Willcutt,  5  Gray 
(Mass.)  328,  66  A.  D.  369. 

issQoodtitle  d.  Edwards  v.  Bailey,  Cowp.  597;  Smith  v.  Williams,  44 
Mich.  240;  House  v.  McCormick,  57  N.  Y.  310;  Taggart  v.  Risley,  4  Or. 
235,  242.  See,  however,  Doane  v.  Willcutt,  5  Gray  (Mass.)  328,  66  A.  D. 
369. 

i«  Qoodtitle  d.  Edwards  v.  Bailey,  Cowp.  597;  Bennett  v.  Waller,  23 
111.  97  (equity);  Hope  v.  Stone,  10  Minn.  141  (Gil.  114).  And  see  Smith 
v.  Williams,  44  Mich.  240. 


520  LAW   OF   EVIDENCE 

upon  that  footing,  the  deed  creates  an  estoppel,  although  it 
contains  no  covenants  for  title*  in  the  technical  sense.141 

Whether  a  deed  containing  a  covenant  of  warranty  estops 
the  grantor  from  asserting  an  after-acquired  estate  depends 
upon  the  nature  both  of  the  grant  and  of  the  warranty.142 

Quitclaim  deed.  A  quitclaim  deed  without  covenants 

does  not  estop  the  grantor  from  asserting  an  after-acquired 
title  to  the  property;143  and  a  covenant  of  warranty,  even 
though  general,144  in  a  quitclaim  deed,  is  generally  limited  in 
effect  to  such  estate  as  the  grantor  then  had,  so  that  a  subse- 
quently acquired  title  may  be  asserted  against  the  grantee.145 

Purchase  money  mortgage.  If,  upon  a  purchase  and 

conveyance  of  land,  the  vendee  gives  back  a  mortgage  with 

i«  Van  Rensselaer  v.  Kearney,  11  How.  (U.  S.)  297,  322;  King 
v.  Rea,  56  Ind.  1,  18;  Bachelder  v.  Lovely,  69  Me.  33,  38;  Hagensick  v. 
Castor,  53  Neb.  495;  Hannon  v.  Christopher,  34  N.  J.  Eq.  459;  Magruder 
v.  Esmay,  35  Ohio  St.  221;  Taggart  v.  Risley,  4  Or.  235;  Root  v.  Crock, 
7  Pa.  378;  Lindsay  v.  Freeman,  83  Tex.  259;  Reynolds  v.  Cook,  83  Va. 
817,  5  A.  S.  R.  317. 

i*2Bigelow,  Estop.  (5th  Ed.)  399;  McBride  v.  Greenwood,  11  Ga.  379; 
Bohon  v.  Bohon,  78  Ky.  408;  Kinnear  v.  Lowell,  34  Me.  299;  Comstock 
v.  Smith,  13  Pick.  (Mass.)  116, -23  A.  D.  670;  Blanchard  v.  Brooks,  12 
Pick.  (Mass.)  47;  Mclnnis  v.  Pickett,  65  Miss.  354;  Wightman  v.  Reyn- 
olds, 24  Miss.  675;  Johnson  v.  Johnson,  170  Mo.  34,  59  L.  R.  A.  748; 
Jackson  d.  Van  Keuren  v.  Hoffman,  9  Cow.  (N.  Y.)  271;  Taggart  v. 
Risley,  4  Or.  235;  Mann  v.  Young,  1  Wash.  T.  454;  Western  Min.  &  Mfg. 
Co.  v.  Peytonia  C.  C.  Co.,  8  W.  Va.  406. 

i«  Doe  d.  McGill  v.  Shea,  2  U.  C.  Q.  B.  483;  Tillotson  v.  Kennedy,  5 
Ala.  407,  39  A.  D.  330  (semble) ;  Haskett  v.  Maxey,  134  Ind.  182,  19  L.  R. 
A.  379;  Nicholson  v.  Caress,  45  Ind.  479  (semble) ;  Fisher  v.  Hallock,  50 
Mich.  463  (semble);  Bogy  v.  Shoab,  13  Mo.  365;  Hagensick  v.  Castor, 
53  Neb.  495;  Harden  v.  Cullins,  8  Nev.  49;  Perrin  v.  Perrin,  62  Tex.  477. 

"4Hanrick  v.  Patrick,  119  U.  S.  156;  Holbrook  v.  Debo,  99  111.  372; 
Locke  v.  White,  89  Ind.  492  (semble) ;  Hoxie  v.  Finney,  16  Gray  (Mass.) 
332. 

i^sQuivey  v.  Baker,  37  Cal.  465;  White  v.  Brocaw,  14  Ohio  St.  339; 
Simon  v.  Stearns,  17  Tex.  Civ.  App.  13;  Wynn  v.  Harman's  Devisees,  5 
Grat.  (Va.)  157. 


§   15lc  ESTOPPEL  BY  DEED.  521 

general  warranty  to  secure  the  price,  he  is  not  thereby  estop- 
ped to  assert  an  after-acquired  title  against  the  mortgagee.146 

Partition.  If  partition  of  lands  is  made  by  writ,  there 

is  an  implied  warranty  of  the  common  title,  and  neither  party 
may  assert  an  after-acquired  paramount  title  to  that  part  of 
the  land  assigned  to  his  former  cotenants.147  In  the  case  of 
voluntary  partition  by  conveyance,  however,  there  is  no  es- 
toppel148 unless  the  deed  in  question  contains  the  covenants  or 
recitals  necessary  to  create  an  estoppel  in  ordinary  convey- 
ances.149 

(c)  Estoppel  83  conveyance  of  title.  It  has  commonly  been 
held  "that  the  presence  of  a  covenant  of  general  warranty 
in  a  conveyance  will  not  only  estop  the  grantor  and  his  heirs 
from  setting  up  an  after-acquired  title,  but  will,  by  force  of 
the  covenant,  have  the  effect  of  actually  transferring  the  new 
estate  in  the  same  manner  as  if  it  had  originally  passed  by  the 
deed.  *  *  *  Few  of  the  cases,  however,  required  any  de- 
cision of  this  question ;  and  the  statements  of  the  courts  are 
for  the  greater  part  mere  generalities,  having  reference  to  the 
relation  of  grantor  and  grantee  or  their  real  privies."150  By 
the  better  opinion,  the  estoppel  merely  renders  the  after-ac- 
quired title  unavailable  against  the  grantee.  It  does  not  oper- 
ate to  transfer  th-  new  estate  to  him  immediately  upon  its 

no  Randall  v.  Lower,  98  Ind.  255;  Brown  v.  Phillips,  40  Mich.  264. 
And  see  Smith  v.  Cannell,  32  Me.  123.  Contra,  Hitchcock  v.  Fortier, 
65  111.  239. 

"TBigelow,  Estop.  (5th  Ed.)  409.  See,  however,  Walker  v.  Hall, 
15  Ohio  St.  355,  86  A.  D.  482. 

"8  Carson  v.  Carson,  122  N.  C.  645;  Harrison  v.  Ray,  108  N.  C.  215, 
23  A.  S.  R.  57.  And  see  Doane  v.  Willcutt,  5  Gray  (Mass.)  328,  66  A.  D. 
369,  16  Gray,  368. 

149  House  v.  McCormick,  57  N.  Y.  310;  Rountree  v.  Denson,  59  Wis. 
522.  And  see  Williams  v.  Gray,  3  Me.  207,  14  A.  D.  234. 

looBigelow,  Estop.  (5th  Ed.)  429. 


522  LAW   OF  EVIDENCE.  §   151C 

acquisition  by  the  grantor.151  Consequently,  the  grantor  can- 
not compel  the  grantee  to  take  the  new  title  against  his  will, 
either  in  satisfaction  of  a  covenant  for  title  or  in  mitigation 
of  damages  for  the  breach  of  it.152  In  some  cases,  however, 
the  theory  of  conveyance  is  the  basis  of  decision,  and  the  es- 
toppel prevails  in  favor  of  the  grantee,  even  against  one  who 
purchases  the  grantor 's  after-acquired  title  for  value  and  with- 
out actual  notice  of  the  prior  conveyance.153  In  other  cases 

isiBigelow,  Estop.  (5th  Ed.)  384,  413  et  seq.;  Burtners  v.  Keran,  24 
Grat.  (Va.)  42.  Contra,  Perkins  v.  Coleman,  90  Ky.  611. 

162  Burton  v.  Reeds,  20  Ind.  87;  Blanchard  v.  Ellis,  1  Gray  (Mass.) 
195,  61  A.  D.  417;  Resser  v.  Carney,  52  Minn.  397;  Woods  v.  North,  6 
Humph.  (Tenn.)  309,  44  A.  D.  312;  Mclnnis  v.  Lyman,  62  Wis.  191.  And 
see  McCarty  v.  Leggett,  3  Hill  (N.  Y.)  134.  Contra,  Boulter  v.  Hamil- 
ton, 15  U.  C.  C.  P.  125;  Reese  v.  Smith,  12  Mo.  344. 

It  is  otherwise  where  the  grantor  acquires  the  paramount  title 
before  the  grantee  is  evicted  under  it.  In  this  event,  only  nominal 
damages  are  recoverable.  King  v.  Gilson,  32  111.  348,  83  A.  D.  269; 
Burton  v.  Reeds,  20  Ind.  87;  Baxter  v.  Bradbury,  20  Me.  260,  37  A. 
D.  49. 

issTrevivan  v.  Lawrance,  1  Salk.  276,  2  Ld.  Raym.  1036,  6  Mod.  256; 
Doe  d.  Potts  v.  Dowdall,  3  Houst.  (Del.)  369,  11  A.  R.  757;  Powers  v. 
Patten,  71  Me.  583;  Knight  v.  Thayer,  125  Mass.  25;  Hooper  v.  Henry, 
31  Minn.  264;  Edwards  v.  Hillier,  70  Miss.  803;  Oliphant  v.  Burns,  14& 
N.  Y.  218,  232  (semble) ;  Tefft  v.  Munson,  57  N.  Y.  97;  Philly  v.  Sanders, 
11  Ohio  St.  490,  78  A.  D.  316;  Wilson  v.  McEwan,  7  Or.  87;  McCusker  v. 
McEvey,  9  R.  I.  528,  11  A.  R.  295;  Woods  v.  Bonner,  89  Tenn.  411,  421; 
Jarvis  v.  Aikens,  25  Vt.  635.  And  see  Thalls  v.  Smith,  139  Ind.  496; 
Hale  v.  Hollon,  14  Tex.  Civ.  App.  96.  In  some  of  these  cases  the  re- 
cording acts  influenced  the  decision. 

If  the  purchaser  of  the  after-acquired  title  has  notice  of  the  first 
deed,  he  is  estopped  the  same  as  his  grantor.  Letson  v.  Roach,  5 
Kan.  App.  57;  Barker  v.  Circle,  60  Mo.  258;  Wark  v.  Willard,  13  N.  H. 
389;  Mann  v.  Young,  1  Wash.  T.  454,  462.  It  is  otherwise  if  the  first 
conveyance  was  made  in  fraud  of  creditors.  Gilliland  v.  Fenn,  90  Ala. 
230,  9  L.  R.  A.  413.  The  purchaser  is  estopped,  also,  if  he  does  not 
show  that  he  bought  for  value.  Lindsay  v.  Freeman,  83  Tex.  259,  267; 
Mann  v.  Young,  1  Wash.  T.  454,  462. 

If  two  or  more  conveyances  are  made  by  a  person  having  no  title, 
a  title  subsequently  acquired  by  him  inures  to  the  benefit  of  the  first 


8     152  ESTOPPEL  BY  DEED.  523 

this  doctrine  is  denied,  and  the  grantee  cannot  urge  the  es- 
toppel against  such  a  purchaser  of  the  grantor's  after-acquir- 
ed title.154 

§  152.    Estoppel  as  to  facts  recited. 

A  party  to  a  deed  is  ordinarily  estopped  to  dispute  the  truth 
of  facts  recited  therein.155  A  recital,  as  used  in  the  law  of  es- 
toppel, is  not  only  the  preliminary  statement  of  the  induce- 
ment and  purpose  of  the  instrument,  but  also  any  distinct,  ma- 
terial statement  of  fact  in  the  writing.186 

grantee.  Morrison  v.  Caldwell,  5  T.  B.  Mon.  (Ky.)  426,  17  A.  D.  84. 
And  see  Watkins  v.  Wassell,  15  Ark.  73. 

154  Bigelow,  Estop.  (5th  Ed.)  433;  Way  v.  Arnold,  18  Ga.  181,  193; 
Ford  v.  Unity  Church  Soc.,  120  Mo.  498,  41  A.  S.  R.  711;  Bingham  v. 
Kirkland,  34  N.  J.  Eq.  229;  Calder  v.  Chapman,  52  Pa.  359,  91  A.  D. 
163.  And  see  Gilliland  v.  Fenn,  90  Ala.  230,  9  L.  R.  A.  413;  Cham- 
berlain v.  Meeder,  16  N.  H.  381;  Buckingham's  Lessee  v.  Hanna,  2 
Ohio  St.  551. 

A  conveyance  by  one  having  neither  title  nor  seisin  cannot  operate 
against  a  subsequent  purchaser  whose  deed  is  executed  after  title  is 
obtained;  but  it  is  otherwise  if  the  grantor  had  seisin  when  he  first 
conveyed.  Bigelow,  Estop.  (5th  Ed.)  438,  444. 

IBB  UNITED  STATES:  Brazee  v.  Schofield,  124  U.  S.  495;  Dundas  v. 
Hitchcock,  12  How.  256;  Crane  v.  Morris'  Lessee,  6  Pet.  598,  610. 

DISTRICT  OF  COLUMBIA:  Morris  v.  Wheat,  8  App.  D.  C.  379;  Anderson 
v.  Reid,  10  App.  D.  C.  426. 

CONNECTICUT:     Stow  v.  Wyse,  7  Conn.  214,  18  A.  D.  99. 

FLORIDA:     Collins  v.  Mitchell,  5  Fla.  364. 

GEORGIA:     Usina  v.  Wilder   58  Ga.  178. 

ILLINOIS:  Cobb  v.  Oldfield,  151  111.  540,  42  A.  S.  R.  263;  Blackburn 
v.  Bell,  91  111.  434;  Lucas  v.  Beebe,  88  111.  427. 

IOWA:     Williams  v.  Swetland,  10  Iowa,  51. 

KENTUCKY:  Brandenburgh  v.  Three  Forks  Dep.  Bank,  19  Ky.  L. 
R.  1974,  45  S.  W.  108. 

MASSACHUSETTS:     Dyer  v.  Rich,  1  Mete.  180. 

MISSOURI:     Tyler  v.  Hall,  106  Mo.  313,  27  A.  S.  R.  337. 

NORTH  CAROLINA:  Wilkes  County  Com'rs  v.  Call,  123  N.  C.  308,  44 
L.  R.  A.  252. 

VIRGINIA:     Bower  v.  McCormick,  23  Grat..310. 

See,  generally,  7  Current  Law,  1489. 

156  Bigelow,  Estop.  (5th  Ed.)  365. 


524  LAW   OF  EVIDENCE. 

(a)  Recitals  binding  grantee.    The  grantee  as  well  as  the 
grantor  may  be  bound  by  recitals  in  the  deed,157  but  he  is  not 
estopped,  as  a  rule,  unless  he  claims  under  the  deed.158    And  if 
it  appears  that  it  was  the  intention  of  the  parties  that  only  one 
of  them  should  be  bound  by  the  recital,  then  the  other  is  not 
estopped  to  deny  its  truth.159 

(b)  Recitals  of  conclusions  of  law.    As  a  rule,  recitals  are 
of  matter  of  fact ;  but  the  recital  of  a  conclusion  of  law  may  be 
equally  binding.     Thus,  a  party  may  be  precluded  from  deny- 
ing the  validity  of  a  patent  by  reason  of  recitals  in  his  deed.160 
However,  a  recital  of  this  nature  would  not  preclude  a  party 
from  denying  the  legality  or  lawfulness  of  the  transaction  or 
instrument  thus  recited.    And  a  recital  in  a  municipal  bond 
of  power  to  issue  it  does  not  estop  the  municipality  from  dis- 
puting the  validity  of  the  bond  for  want  of  power.161 

(c)  Certainty — General    and    particular    recitals.    The    re- 
cital must  be  certain,  else  an  estoppel  does  not  arise.162    With 

157  Hanly  v.  Blackford,  1  Dana  (Ky.)  1,  25  A.  D.  114.  See,  also,  page 
534,  infra. 

iss  Graves  v.  Colwell,  90  111.  612.  See,  also,  page  534,  infra.  Re- 
citals as  estoppels  depend  on  the  same  principles  with  admissions. 
They  estop  only  the  party  making  them  and  those  claiming  under  him. 
Stevenson's  Heirs  v.  McReary,  12  Smedes  &  M.  (Miss.)  9,  51  A.  D.  102, 
114;  Morse  v.  Bellows,  7  N.  H.  549,  28  A.  D.  372. 

Recitals  in  a  deed  poll  estop  the  grantee  only  under  those  circum- 
stances in  which  declarations  of  the  grantor  to  the  same  effect,  made 
at  the  time  of  executing  the  deed,  would  be  admissible  against  the 
grantee.  Joeckel  v.  Easton,  11  Mo.  118,  47  A.  D.  142. 

159  Blackball  v.  Gibson,  2  L.  R.  Ir.  49;  Stroughill  v.  Buck,  14  Q.  B.  781; 
Bower  v.  McCormick,  23  Grat.  (Va.)  310. 

leo  Bowman  v.  Taylor,  2  Adol.  &  E.  278;  Hills  v.  Laming,  9  Exch.  256. 

To  raise  an  estoppel,  the  recital  must  be  distinct  and  precise.  Jack- 
son v.  Allen,  120  Mass.  64. 

lei  Northern  Bank  v.  Porter  Township  Trustees,  110  U.  S.  608;  Lake 
County  v.  Graham,  130  U.  S.  674;  Wilkes  County  Com'rs  v.  Call,  123  N. 
C.  308.  44  L.  R.  A.  252.  See,  also,  pages  526,  541,  infra. 

162  School  Dist.  v.  Stone,  106  U.  S.  183;  Zimmler  v.  San  Luis  Water  Co., 


§   152c  ESTOPPEL  BY  DEED.  525 

this  idea  in  mind,  recitals  have  been  classified  as  being  either 
general  or  particular. 

General  recitals  are  such  as  do  not  definitely  affirm  or  deny 
the  existence  of  some  fact  or  either  expressly  or  impliedly 
show  a  clear  intention  of  the  parties  that  either  one  or  the 
other  or  both  of  them  shall  be  concluded  from  disputing  the 
fact  recited.  These  do  not  work  an  estoppel  as  to  the  fact 
in  question.163  Thus,  a  recital  in  the  alternative  is  not  con- 
clusive of  either  alternative  alone.  A  party  may  deny  its  truth 
as  to  one  of  the  alternatives.164 

Particular  recitals,  on  the  other  hand,  are  such  as  definitely 
affirm  or  deny  the  existence  of  some  fact,  and  either  express- 
ly or  impliedly  show  a  clear  intention  of  the  parties  that  either 
one  or  the  other  or  both  of  them  shall  be  precluded  from  as- 
serting anything  to  the  contrary.  These  are  binding.165  Thus, 

57  Cal.  221;  Hubbard  v.  Norton,  10  Conn.  422;  Hays  v.  Askew,  50  N.  C. 
(5  Jones,  Law)  63;  Linney  v.  Woods,  66  Tex.  22. 

issKepp  v.  Wiggett,  10  C.  B.  35;  Farrar  v.  Cooper,  34  Me.  394; 
Spofford  v.  Hobbs,  29  Me.  148,  48  A.  D.  521;  Jackson  v.  Allen,  120  Mass. 
64;  Stevenson's  Heirs  v.  McReary,  12  Smedes  &  M.  (Miss.)  9,  51  A.  D. 
102,  114;  Lot  v.  Thomas,  2  N.  J.  Law,  407,  2  A.  D.  354;  Purdy  v.  Coar, 
109  N.  Y.  448,  4  A.  S.  R.  491;  Hall  v.  Benner,  1  Pen.  &  W.  (Pa.)  402,  21 
A.  D.  394;  McDonald  v.  Lusk,  9  Lea  (Tenn.)  654;  Sheffey's  Ex'r  v.  Gar- 
diner, 79  Va.  313. 

It  has  been  said,  indeed,  that  a  mere  recital  of  a  particular  fact  does 
not  preclude  the  parties  from  denying  it.  There  must  be  a  direct 
affirmation  of  the  fact.  Bower  v.  McCormick,  23  Grat.  (Va.)  310. 

164  Right  d.  Jefferys  V.  Bucknell,  2  Barn.  &  Ad.  278. 

IBS  Lainson  v.  Tremere,  1  Adol.  &  E.  792;  Carpenter  v.  Buller,  8  Mees. 
&  W.  209;  Root  v.  Crock,  7  Pa.  378;  Hall  v.  Benner,  1  Pen.  &  W.  (Pa.) 
402,  21  A.  D.  394;  Anderson  v.  Phlegar,  93  Va.  415. 

A  recital  that  a  deed  of  conveyance  is  made  subject  to  a  certain  mort- 
gage estops  the  grantee  from  denying  the  lien.  Johnson  v.  Thompson, 
129  Mass.  398.  Contra,  Goodman  v.  Randall,  44  Conn.  321.  This  is 
true,  of  course,  where  the  grantee  covenants  to  pay  the  mortgage. 
Parkinson  v.  Sherman,  74  N.  Y.  88,  30  A.  R.  268;  Freeman  v.  Auld.  44  N. 
Y.  50;  McConihe  v.  Fales,  107  N.  Y.  404.  The  recital  does  not  thus 
estop  the  grantee  if  it  is  general.  Purdy  v.  Coar,  109  N.  Y.  448,  4  A.  S. 


526  LAW  OF  EVIDENCE.  §   152c 

if  a  deed  of  conveyance  bounds  the  land  upon  a  street  or  pri- 
vate way,  the  parties  cannot  deny  the  existence  of  the  street 
or  way.166  So,  the  sureties  in  a  bond  of  a  person  acting  in  an 
official  or  representative  capacity  are  estopped  to  deny  their 
principal's  capacity.167  Again,  the  obligors  in  a  forthcoming 
bond  given  in  attachment  or  replevin  are  estopped  to  deny 
that  the  defendant  owned  the  property168  and  was  in  posses- 
sion of  it169  when  the  bond  was  given.  And  recitals  in  mu- 
nicipal bonds  of.  preliminary  facts  touching  the  regularity  of 
their  issuance  estop  the  municipality  from  denying  those 
facts.170 

R.  491.  Nor  if  it  was  made  for  a  collateral  purpose,  and  not  to  bind  the 
grantee.  Weed  Sew.  Mach.  Co.  v.  Emerson,  115  Mass.  554;  Calkins 
v.  Copley,  29  Minn.  471. 

ice  Espley  v.  Wilkes,  L.  R.  7  Exch.  298;  Seeger  v.  Mueller,  133  111.  86; 
Riley  v.  Stein,  50  Kan.  591;  Sheen  v.  Stothart,  29  La.  Ann.  630;  Tohey 
v.  Taunton,  119  Mass.  404;  Fox  v.  Union  Sugar  Refinery,  109  Mass.  292; 
Parker  v.  Smith,  17  Mass.  413,  9  A.  D.  157;  Dawson  v.  St.  P.  F.  Ins.  Co., 
15  Minn.  136,  2  A.  R.  109,  113  (semble);  Lindsay  v.  Jones,  21  Nev.  72; 
Lennig  v.  Ocean  City  Ass'n,  41  N.  J.  Eq.  606,  56  A.  R.  16,  18;  Moose  v. 
Carson,  104  N.  C.  431,  17  A.  S.  R.  681;  Donohoo  v.  Murray,  62  Wis.  100. 
See  Bell  v.  Todd,  51  Mich.  21. 

167  Bruce  v.  U.  S.,  17  How.  (U.  S.)  437;  Norris  v.  State,  22  Ark.  524; 
Gray  v.  State,  78  Ind.  68,  41  A.  R.  545;  Jones  v.  Gallatin  County,  78 
Ky.  491;  Williamson  v.  Woodman,  73  Me.  163;  Cutler  v.  Dickinson,  8 
Pick.  (Mass.)  386;  Kelly  v.  State,  25  Ohio  St.  567;  Cecil  v.  Early,  10 
Grat.  (Va.)  198.  See,  however,  Kepp  v.  Wiggett,  10  C.  B.  35. 

On  the  same  principle,  a  mortgagor  is  estopped  to  deny  the  mort- 
gagee's official  capacity.  Floyd  County  v.  Morrison,  40  Iowa,  188. 

Sureties  are  also  estopped  to  assert  that  the  principal  was  dead 
when  the  bond  was  made.  Collins  v.  Mitchell,  5  Fla.  364.  But  they 
may  show  that  the  obligee  was  then  dead.  Tait  v.  Frow,  8  Ala.  543. 

IBS  Mitchell  v.   Ingram,   38  Ala.  395;    Gray  v.  MacLean,   17   111.  404. 

The  rule  of  the  text  applies  also  to  a  claimant  of  the  property  who 
becomes  a  party  to  the  bond.  Page  v.  Butler,  15  Mo.  73. 

iG9Benesch  v.  Waggner,  12  Colo.  534,  13  A.  S.  R.  254;  Martin  v.  Gil- 
bert, 119  N.  Y.  298,  16  A.  S.  R.  823;  Griswold  v.  Lundback,  4  S.  D.  441. 
See,  also,  Roswald  v.  Hobbie,  85  Ala.  73,  7  A.  S.  R.  23. 


§   152C  ESTOPPEL  BY  DEED.  527 

The  mere  fact  that  a  recital  is  expressed  in  general  terms 
does  not  defeat  an  estoppel,  provided  that  it  is  certain  as  to  the 
fact  in  question  and  as  to  the  intention  of  the  parties  to  be 
bound.  Nor,  on  the  other  hand,  does  an  estoppel  arise  from  a 
recital  expressed  in  particular  terms,  unless  it  appears  that  it 
was  the  intention  of  the  parties  that  the  statement  should  not 
be  disputed.171  Thus,  by  the  weight  of  authority,  the  ordinary 
acknowledgment  of  receipt  of  consideration  in  a  deed  is  not 
construed  as  a  contract  that  the  statement  shall  be  binding, 
and  it  is  not  conclusive  between  the  parties,  except  for  the  pur- 
pose of  giving  effect  to  the  operative  words  in  the  deed.172 

"o  Webb  v.  Herne  Bay  Com'rs,  L.  R.  5  Q.  B.  642;  Northern  Bank  v. 
Porter  Tp.,  110  U.  S.  608;  Independent  School  Dist.  v.  Rew,  111  Fed.  1,  55 
L.  R.  A.  364;  Flagg  v.  School  Dist.  No.  70,  4  N.  D.  30,  25  L.  R.  A.  363; 
Coler  v.  Dwight  School  Tp.,  3  N.  D.  249,  28  L.  R.  A.  649.  See,  how- 
ever, Nat.  L.  Ins.  Co.  v.  Mead,  13  S.  D.  37,  48  L.  R.  A.  785. 

The  same  is  true  of  recitals  in  conveyances  by  municipal  corporations. 
Gordon  v.  San  Diego,  101  Cal.  522,  40  A.  S.  R.  73. 

The  recital  must  distinctly  and  necessarily  import  the  fact  in  ques- 
tion, else  the  municipality  is  not  estopped  to  deny  that  fact.  School 
Dist.  v.  Stone,  106  U.  S.  183. 

A  recital  cannot  preclude  an  inquiry  into  the  powers  of  a  corporation, 
however.  Section  152 (b),  supra. 

171  South  Eastern  R.  Co.  v.  Warton,  6  Hurl.  &  N.  520;   Blackball  v 
Gibson,  2  L.  R.  Ir.  49;  Butler  University  v.  Scoonover,  114  Ind.  381,  b 
A.  S.  R.  627";  Muhlenberg  v.  Druckenmiller,  103  Pa.  631. 

A  covenant  against  incumbrances  does  not  estop  the  grantor  from 
asserting  that  the  deed  was  accepted  subject  to  a  certain  incumbrance 
which  the  grantee  agreed  to  pay  as  part  of  the  price.  Bolles  v. 
Beach,  22  N.  J.  Law,  680,  53  A.  D.  263. 

172  Mobile  &  M.  R.  Co.  v.  Wilkinson,  72  Ala.  286;  Irvine  v.  McKeon, 
23  Cal.  472;  Union  M.  L.  Ins.  Co.  v.  Kirchoff,  133  111.  368;  Goodspeed  v. 
Fuller,  46  Me.  141,  71  A.  D.  572;  McCrea  v.  Purmort,  16  Wend.  (N.  Y.) 
460,  30  A.  D.  103;   Watson  v.  Elaine,  12  Serg.  &  R.  131,  14  A.  D.  669. 
And  see  Hanson  v.  Buckner's  Ex'r,  4  Dana   (Ky.)   251,  29  A.  D.  401; 
Miller  v.  Goodwin,  8  Gray  (Mass.)  542. 

A  party  cannot  dispute  the  recital  for  the  purpose  of  destroying  the 
operation  of  the  deed  as  a  conveyance.  Mobile  &  M.  R.  Co.  v.  Wil- 


528  LAW   OF   EVIDENCE. 

(d)  Materiality— Collateral  matters.  To  work  an  estoppel, 
the  recital  must  be  of  a  fact  material  and  necessary  to  the 
purposes  of  the  deed.173  Recitals  in  a  deed  work  an  estoppel 
as  to  the  facts  recited  only  where  the  deed  itself  is  the  founda- 
tion of  the  cause  of  action  or  defense.  The  estoppel  does  not 
arise  where  the  action  is  wholly  collateral  to  the  main  object 
of  the  deed.174  While  the  deed  is  admissible  in  a  collateral 
dispute  as  an  admission  of  the  facts  recited  in  it,175  it  is  not 
binding  on  the  parties  to  it. 

If  a  recital  is  made  for  one  purpose  only,  it  is  not  binding 
for  any  other  purpose.176 

§  153.    Persons  estopped,  and  entitled  to  urge  estoppel. 

(a)  Parties  to  deed — In  general.    In  the  case  of  a  deed  of 

kinson,  72  Ala.  286;  Campbell  v.  Carruth,  32  Fla.  264;  Day  v.  Davis,  64 
Miss.  253;  McMullin  v.  Glass,  27  Pa.  151.  And  it  has  been  held  that 
a  consideration  different  from-  or  further  than  that  expressed  in 
the  deed  cannot  be  proved.  Houston  v.  Blackman,  66  Ala.  559,  41  A.  R. 
756;  Maigley  v.  Hauer,  7  Johns.  (N.  Y.)  341;  Wilkinson  v.  Wilkinson, 
17  N.  C.  (2  Dev.  Eq.)  376. 

ITS  Blackball  v.  Gibson,  2  L.  R.  Ir.  49;  Osborne  v.  Endicott,  6  Cal.  149, 
65  A.  D.  498;  Walker  v.  Sioux  City  &  I.  F.  T.  Lot  Co.,  65  Iowa,  563; 
Baldwin  v.  Thompson,  15  Iowa,  504;  Reed  v.  McCourt,  41  N.  Y.  435; 
Den  d.  Brinegar  v.  Chaffin,  14  N.  C.  (3  Dev.)  108,  22  A.  D.  711;  Hall 
v.  Benner,  1  Pen.  &  W.  (Pa.)  402,  21  A.  D.  394. 

An  estoppel  arising  out  of  the  acceptance  of  a  deed  is  restricted  to  the 
estate  which  the  deed  undertakes  to  transfer.  Fisher  v.  Cid  C.  Min. 
Co.,  97  N.  C.  95. 

174  South  Eastern  R.  Co.  v.  Wartdn,  6  Hurl.  &  N.  520 ;  Fraser  v.  Pen- 
dlebury,  31  Law  J.  C.  P.  1;  Carpenter  v.  Buller,  8  Mees.  &  W.  209; 
Bank  of  America  v.  Banks,  101  U.  S.  240,  247;  Claflin  v.  Boston  &  A.  R. 
Co.,  157  Mass.  489,  20  L.  R.  A.  638;  Reed  v.  McCourt,  41  N.  Y.  435; 
Linney  v.  Wood,  66  Tex.  22. 

The  estoppel  may  be  urged  in  an  action  to  enforce  rights  arising  out 
of  the  deed,  however,  though  not  based  upon  it.  Wiles  v.  Woodward,  5 
Exch.  557,  563. 

ITS  Carpenter  v.  Buller,  8  Mees.  &  W.  209,  213   (semble). 

"6  South  Eastern  R.  Co.  v.  Warton,  6  Hurl.  &  N    520;    Weed  Sew. 


§    153a  ESTOPPEL  BY  DEED.  529 

indenture,  both  parties  are  estopped  to  assert  anything  in 
derogation  of  it,  and  ordinarily  to  deny  the  truth  of  its  recitals. 

In  the  case  of  a  deed  poll,  a  distinction  is  to  be  noted  be- 
tween the  right  to  assert  a  title  in  derogation  of  the  convey- 
ance and  the  right  to  deny  the  truth  of  its  recitals.  The  gran- 
tor in  such  a  deed  is  estopped  to  assert  a  derogatory  right  or 
title,177  but  the  grantee  is  not  thus  bound, — this  latter  being  an 
important  exception  to  the  commonly  asserted  rule  that  an  es- 
toppel must  be  mutual,  else  it  does  not  bind  either  party.178 
As  to  recitals  in  a  deed  poll,  the  grantor  is  ordinarily  estop- 
ped by  them;179  and  this  is  true  as  to  the  grantee  also  if  he 
claims  under  the  deed,180  but  not  otherwise. 

Parties  acting  in  representative  capacity.  If  a  deed 

is  made  in  a  representative  capacity,  the  principal  is  estopped 
only  so  far  as  the  deed  was  authorized.  The  state,  for  instance, 
is  not  estopped  by  the  unauthorized  deeds  of  its  officers.181 

A  deed  made  by  a  person  individually  does  not  estop  him  in 
a  representative  capacity.182  Thus,  a  trustee  is  not  estopped 
as  such  by  a  deed  previously  made  by  him  as  an  individual.188 

Mach.  Co.  v.  Emerson,  115  Mass.  554;  Calkins  v.  Copley,  29  Minn. 
471;  Fisher  v.  Cid  C.  Min.  Co.,  97  N.  C.  95;  McCullough  v.  Dashiell,  78 
Va.  634. 

"7  McCusker  v.  McEvey,  9  R.  I.  528,  11  A.  R.  295. 

"8  Robertson  v.  Pickrell,  109  U.  S.  608,  614;  Cooper  v.  Watson,  73 
Ala.  252;  Winlock  v.  Hardy,  4  Litt.  (Ky.)  272;  Great  Falls  Co.  v. 
Worster,  15  N.  H.  412;  Sparrow  v.  Kingman,  1  N.  Y.  242,  249. 

It  is  otherwise  where 'the  deed  contains  covenants  on  the  part  of 
the  grantee  and  he  accepts  the  deed.  Atlantic  Dock  Co.  v.  Leavitt,  54 
N.  Y.  35,  13  A.  R.  556.  See,  however,  Gardner  v.  Greene,  5  R.  I.  104. 

A  tenant  under  a  lease  hy  deed  poll  is  estopped  to  deny  his  land- 
lord's title,  but  this  is  estoppel  in  pais.  See  §  158  (c),  infra. 

179  Section  152,  supra. 

iso  Section  152(a),  supra,  and  page  534,  infra. 

isi  Heyward  v.  Farmers'  Min.  Co.,  42  S.  C.  138,  46  A.  S.  R.  702. 

M  Administrator.  Metiers  v.  Brown,  1  Hurl.  &  C.  686.  Agent. 
Franklin  v.  Dorland,  28  Cal.  175,  87  A.  D.  111.  Head  of  family.  Hall 
v.  Matthews,  68  Ga,  490. 

Hammon,  Ev. — 34 


530  LAW   OF   EVIDENCE.  §   153b 

As  to  whether  a  deed  made  in  a  representative  capacity 
estops  the  grantor  individually,  the  cases  are  not  in  accord. 
By  the  weight  of  authority,  perhaps,  the  grantor  is  estopped 
to  assert  an  individual  right  or  title  in  derogation  of  the 
deed,184  but  there  is  respectable  authority  to  the  contrary.185 

A  deed  accepted  in  a  representative  capacity  does  not  estop 
the  grantee  individually.186 

Persons  acting  by  authority  of  the  grantee  stand  in  his  shoes 
and  may  urge  the  estoppel  against  the  grantor.187 

(b)  Privies.  Persons  in  privity  with  the  parties  to  a  deed 
are  bound  by  the  estoppel  created  by  the  instrument,188  and 

issphillippi  v.  Leet,  19  Colo.  246;  Dewhurst  v.  Wright,  29  Fla.  223; 
Kelley  v.  Jenness,  50  Me.  455,  79  A.  D.  623;  Runlet  v.  Otis,  2  N.  H.  167; 
Burchard  v.  Hubbard,  11  Ohio,  316;  Fretelliere  v.  Hindes,  57  Tex.  392; 
Gregory  v.  Peoples,  80  Va.  355. 

is*  Deed  by  administrator.  Jones  v.  King,  25  111.  383;  Johnson  v. 
Brauch,  9  S.  D.  116,  62  A.  S.  R.  857;  Prouty  v.  Mather,  49  Vt.  415. 
Deed  by  agent.  Stow  v.  Wyse,  7  Conn.  214,  18  A.  D.  99;  Blanchard  v. 
Tyler,  12  Mich.  339,  86  A.  D.  57;  North  v.  Henneberry,  44  Wis.  306. 
Deed,  by  assignee  in  bankruptcy.  Hitchcock  v.  Southern  I.  &  T.  Co. 
(Tenn.  Ch.)  38  S.  W.  588.  Deed  by  guardian.  Morris  v.  Wheat,  8 
App.  D.  C.  379;  Heard  v.  Hall,  16  Pick.  (Mass.)  457;  Fobte  v.  Clark, 
102  Mo.  394,  11  L.  R.  A.  861.  And  see  Wells  v.  Steckelberg,  52  Neb.  597, 
66  A.  S.  R.  529.  Deed  by  partner.  Sutline  v.  Jones,  61  Ga.  676.  Deed 
by  trustee.  Rogers  v.  Donnellan,  11  Utah,  108,  113  (semble). 

is5  Deed  by  administrator.  Wright  v.  De  Groff,  14  Mich.  164;  Jackson 
d.  Van  Keuren-  v.  Hoffman,  9  Cow.  (N.  Y.)  271.  And  see  Gjerstadengen 
v.  Hartzell,  9  N.  D.  268,  81  A.  S.  R.  575.  Deed  by  agent.  Smith  v.  Penny, 
44  Cal.  161;  Carothers  v.  Alexander,  74  Tex.  309.  And  see  Consol.  Rep. 
Mt.  Min.  Co.  v.  Lebanon  Min.  Co.,  9  Colo.  343. 

If  an  executor,  as  such,  conveys  land  in  which  he  has  a  title  in- 
dividually, he  is  estopped  by  the  deed  to  assert  that  title  against  the 
grantee.  But  if  he  does  not  acquire  title  individually  until  after  his 
conveyance  as  executor,  he  is  not  estopped  to  assert  it.  Allen  v.  Say- 
ward,  5  Me.  227,  17  A.  D.  221,  223. 

IBB  Seabury  v.  Stewart,  22  Ala,  207,  58  A.  D.  254. 

IST  Osgood  v.  Abbott,  58  Me.  73. 

iss  Privies  in  estate,  in  blood,  and  in  law  are  thus  bound.  Doe  d. 
Leeming  v.  Skirrow,  2  Nev.  &  P.  123;  Kimball  v.  Blaisdell,  5  N.  H.  533, 


§   I53b  ESTOPPEL  BY  DEED.  531 

may  take  advantage  of  it.189  "In  the  law  of  estoppel,  privity 
signifies  (1)  merely  succession  of  rights, — that  is,  the  devolu- 
tion, in  whole  or  in  part,  of  the  rights  and  duties  of  one  person 
upon  another,  as  in  the  case  of  the  succession  of  an  assignee  in 
bankruptcy  to  the  estate  of  the  bankrupt  on  the  one  hand, 
and  to  the  rights  of  the  creditors  on  the  other,100 — or  (2)  the 
derivation  of  rights  by  one  person  from  and  holding  in  sub- 
ordination to  those  of  another,  as  in  the  case  of  a  tenant."191 
Accordingly,  a  person  is  not  bound  by  the  estoppel  on  another, 
nor  may  he  urge  it,  unless  he  succeeds  to  his  position,  or 
holds  subordinately  to  it.102  An  heir  claiming  an  independent 

22  A.  D.  476,  478;  Tefft  v.  Munson,  57  N.  Y.  99.  Thus,  heirs  may  be 
bound  by  an  estoppel  against  the  ancestor.  Van  Rensselaer  v.  Kear- 
ney, 11  How.  (U.  S.)  297;  Jackson  v.  Rowell,  87  Ala.  685,  4  L.  R.  A. 
637;  Ford's  Lessee  v.  Hays,  1  Har.  (Del.)  48,  23  A,  D.  369;  Massie  v. 
Sebastian,  4  Bibb  (Ky.)  433;  Lawry  v.  Williams,  U  Me.  281;  Bates  v. 
Norcross,  17  Pick.  (Mass.)  14,  28  A.  D.  271;  Moore  v.  Rake,  26  N.  J. 
Law,  574;  Utica  Bank  v.  Mersereau,  3  Barb.  Ch.  (N.  Y.)  528,  49  A.  D. 
189;  Bell  v.  Adams,  81  N.  C.  118;  Carson  v.  New  Bellevue  Gem.  Co., 
104  Pa.  575;  McWilliams  v.  Nisley,  2  Serg.  &  R.  (Pa.)  507,  7  A.  D.  654; 
Wingo  v.  Parker,  19  S.  C.  9;  Buford  v.  Adair,  43  W.  Va.  211,  64  A.  S. 
R.  854.  And  the  same  is  true  of  devisees.  Hitchcock  v.  So.  I.  &  T. 
Co.  (Tenn.  Ch.)  38  S.  W.  588. 

i8»  Heirs  and  devisees  may  take  advantage  of  an  estoppel  in  favor 
of  the  ancestor.  Jones  v.  King,  25  111.  383;  Logan  v.  Moore,  7  Dana 
(Ky.)  74;  Lawry  v.  Williams,  13  Me.  281;  Utica  Bank  v.  Mersereau,  3 
Barb.  Ch.  (N.  Y.)  528,  49  A.  D.  189. 

IQO  This  includes  privies  in  blood  and  privies  in  law.  See  note  188, 
supra. 

i9i  Bigelow,  Estop.  (5th  Ed.)  347;  Taylor  v.  Needham,  2  Taunt.  278. 

A  tenant  is  bound  by  an  estoppel  on  the  landlord,  where  his  title 
as  tenant  is  derived  after  the  estoppel  arises.  Den  d.  Bufferlow  v. 
Newsom,  12  N.  C.  (1  Dev.)  208,  17  A.  D.  565. 

102  New  Orleans  v.  Gaines'  Adm'r,  138  U.  S.  595,  614;  Gorton  v. 
Roach,  46  Mich.  294. 

Kinship  alone,  whether  by  affinity  or  consanguinity,  does  not  create 
privity  for  the  purpose  of  estoppel.  This  arises  only  where  the  heir 
represents  the  ancestor  and  continues  his  estate.  Trolan  v.  Rogers, 
88  Hun  (N.  Y.)  422. 


532  LAW    OF   EVIDENCE. 

title  in  himself  is  not  bound  by  an  estoppel  on  his  ancestor.193 
Nor  do  judgment  debtor  and  creditor  stand  in  privity.  Con- 
sequently, a  creditor  levying  on  land  may  not  take  advantage 
of  an  estoppel  created  by  a  deed  thereof  to  the  debtor,  where 
the  creditor  does  not  buy  in  the  land.194 

Privity  between  grantee  and  grantor.  The  grantee  of 

a  party  to  a  deed  of  conveyance  is  not  in  privity  with  him, 
by  the  modern  rule,  so  as  to  be  bound  by,  or  entitled  to  take 
advantage  of,  the  estoppel  created  by  the  deed.195 

It  is  sometimes  said  that  where  two  persons  trace  title  to 
the  same  grantor,  each  is  estopped,  as  against  the  other,  to 
deny  that  grantor's  title.  This  statement,  however,  is  too 
broad,  since  one  of  two  grantees  from  the  same  grantor  may 
connect  himself  with,  and  assert  against  the  other,  a  title  para- 
mount to  that  of  the  common  grantor.196  If  a  grantee  asserts 
no  other  right  or  title  than  that  conveyed  by  the  deed,  how- 
ever, he  is  estopped  to  deny  his  grantor's  title  as  against  an- 

i93Ebey  v.  Adams,  135  111.  80,  10  L.  R.  A.  162;  Bohon  v.  Bohon,  78 
Ky.  408;  Russ  v.  Alpaugh,  118  Mass.  369,  19  A.  R.  464;  Foote  v.  Clark, 
102  Mo.  394,  11  L.  R.  A.  861;  Chauvin  v.  Wagner,  18  Mo.  531;  Trolan  v. 
Rogers,  88  Hun  (N.  Y.)  422;  Kerbough  v.  Vance,  6  Baxt.  (Tenn.)  110; 
McCorry  v.  King's  Heirs,  3  Humph.  (Tenn.)  267,  39  A.  D.  165. 

is*  Water's  Appeal,  35  Pa.  523,  78  A.  D.  354,  356. 

However,  a  creditor  who  levies  execution  on  land,  and  buys  it  in,  is 
bound  by  an  estoppel  on  the  debtor  as  owner.  Kimball  v.  Blaisdell,  5 
N.  H.  533,  22  A.  D.  476.  And  a  purchaser  at  execution  sale  of  the 
property  may  take  advantage  of  an  estoppel  arising  from  the  deed  by 
which  the  debtor  acquired  title.  Dodge  v.  Walley,  22  Cal.  224,  83  A. 
D.  61.  And  he  is  estopped  by  a  deed  made  by  the  debtor  before  the 
sheriff's  sale.  Gilliam  v.  Bird,  30  N.  C.  (8  Ired.)  280,  49  A.  D.  379. 

Estoppel  by  sheriff's  deed,  see  §  154 (a),  infra. 

las  Cooper  v.  Watson,  73  Ala.  252;  Gwinn  v.  Smith,  55  Ga.  145; 
Winlock  v.  Hardy,  4  Litt.  (Ky.)  272;  McLeery  v.  McLeery,  65  Me.  172, 
20  A.  R.  683;  Preiner  v.  Meyer,  67  Minn.  197;  Cummings  v.  Powell,  97 
Mo.  524. 

"eBigelow,  Estop.  (5th  Ed.)  346;  Rice  v.  St.  L.,  A.  &  T.  R.  Co.,  87 
Tex.  90,  47  A.  S.  R.  75. 


§   153b  ESTOPPEL  BY  DEED.  533 

other  person  claiming  under  a  deed  from  the  same  grantor.197 
The  rule  is  the  same  with  reference  to  defeating  the  dower 
right  of  the  widow  of  the  grantor.  A  grantee  may  set  up  insuf- 
ficient seisin  on  part  of  the  grantor,  or  a  paramount  title  in 
a  third  person,  as  against  the  widow's  demand  for  dower,198 
but,  unless  he  does  this,  the  grantee  cannot  thus  defeat  the 
dower  right.199 

If  a  person  without  title  conveys  land  by  deed  with  war- 
ranty, the  estoppel  arising  against  him  to  assert  an  after- 
acquired  title  may  be  taken  advantage  of,  not  only  by  his  gran- 
tee, but  also  by  one  to  whom  the  grantee  has  conveyed  the 
premises.  This  is  allowed,  however,  because  the  covenant  of 
warranty  in  the  original  deed  runs  with  the  land.200  If  a  per- 

I»T  Lewis  v.  Watson,  98  Ala.  479,  39  A.  S.  R.  82;   Anderson  v.  Reid, 

10  App.  D.  C.  426;  Doyle  v.  Wade,  23  Fla.  90,  11  A.  S.  R.  334;  Hassel- 
man  v.  U.  S.  Mortg.  Co.,  97  Ind.  365;  Addison  v.  Crow,  5  Dana  (Ky.) 
271;  Bedford  v.  Urquhart,  8  La.  234,  28  A.  D.  137;  Griffin  v.  Sheffield, 
38  Miss.  359,  77  A.  D.  646;  Wells  v.  Steckelberg,  52  Neb.  597,  66  A.  S. 
R.  529;  Bernhardt  v.  Brown,  122  N.  C.  587,  65  A.  S.  R.  725;  Alexander 
v.  Gibbon,  118  N.  C.  796,  54  A.  S.  R.  757;   Bynum  v.  Miller,  86  N.  C. 
559,  41  A.  R.  467;  Gilliam  v.  Bird,  30  N.  C.  (8  Ired.)  280,  49  A.  D.  379; 
Eagle  Woolen  Mills  Co.  v.  Monteith,  2  Or.  277;   Ames  v.  Beckley,  48 
Vt.  395;  Boiling  v.  Teel,  76, Va.  487;  Schwallback  v.  Chicago,  M.  &  St. 
P.  R.  Co.,  69  Wis.  292,  2  A.  S.  R.  740.     See,  however,  Joeckel  v.  Easton, 

11  Mo.  118,  47  A.  D.  142;  Frey  v.  Ramsour,  66  N.  C.  466;  Rice  v.  St. 
L.,  A.  &  T.  R.  Co.,  87  Tex.  90,  47  A.  S.  R.  72,  and  note. 

Application  of  this  rule  to  tenants  in  common,  see  note,  47  A.  S.  R. 
78;  Sands  v.  Davis,  40  Mich.  14;  Pillow  v.  S.  W.  Va.  Imp.  Co.,  92  Va. 
144,  53  A.  S.  R.  804. 

Properly  speaking,  this  rule  does  not  rest  on  a  relation  of  privity 
between  grantor  and  grantee.  Bigelow,  Estop.  (5th  Ed.)  346,  347. 

"«Cobb  v.  Oldfleld,  151  111.  540,  42  A.  S.  R.  263;  Foster  v.  Dwinel, 
49  Me.  44;  Sparrow  v.  Kingman,  1  N.  Y.  242. 

i»»Ketchum  v.  Schicketanz,  73  Ind.  137;  Dashiel  v.  Collier,  4  J.  J. 
Marsh.  (Ky.)  601;  Wedge  v.  Moore,  6  Gush.  (Mass.)  8;  Ward's  Heirs 
v.  Mclntosh,  12  Ohio  St.  231;  Gayle  v.  Price,  5  Rich.  Law  (S.  C.)  525. 

zoascofflns  v.  Grandstaff,  12  Kan.  467;  Powers  v.  Patten,  71  Mo.  583; 
Comstock  v.  Smith,  13  Pick.  (Mass.)  116,  23  A.  D.  670,  671  (semble); 


534  LAW   OF   EVIDENCE.  §   153C 

son  without  title,  having  conveyed  land  by  deed  with  warranty, 
subsequently  acquires  title  and  conveys  it  to  another,  the  sec- 
ond grantee  is  not  in  privity  with  the  grantor,  and  he  may  ac- 
cordingly, in  some  states,  assert  the  after-acquired  title  against 
the  first  grantee.  In  many  states,  indeed,  the  second  grantee 
is  bound  by  the  estoppel  on  the  grantor,  not,  however,  because 
of  privity,  but  because  the  estoppel  operates  to  transfer  the 
after-acquired  title  to  the  first  grantee  immediately  on  its  ac- 
quisition by  the  grantor.201 

While  a  grantee  is  not  in  privity  with  his  grantor,  yet  he 
is  bound  by  proper  recitals  in  the  deed,  and  the  same  is  true 
of  recitals  in  remote  deeds  in  his  chain  of  title.202  He  is  thus 
bound,  however,  only  where  he  claims  under  the  deed.  Even 
though  a  recital  is  in  proper  form  to  bind  him,  he  is  not  estop- 
ped by  it  if  he  does  not  claim  under  the  deed  in  which  it  is 
contained.203 

(c)  Strangers  to  deed — Mutuality  of  estoppel.  It  is  fre- 
quently said  that  an  estoppel  must  be  mutual,  else  it  will  not 
operate  as  a  bar,  and  that,  unless  both  parties  are  bound, 
neither  will  be  concluded.204  So  far  as  the  parties  to  the  deed 

Johnson  v.  Johnson,  170  Mo.  34,  59  L.  R.  A.  748;  Fordyce  v.  Rapp,  131 
Mo.  354;  Pillsbury  v.  Alexander,  40  Neb.  242;  Coleman  v.  Bresnaham, 
54  Hun  (N.  Y.)  619;  Stone  v.  Sledge,  87  Tex.  49,  47  A.  S.  R.  65. 

201  Section  151(c),  supra. 

202  Brazee  v.  Schofield,  124  U.  S.  495;  Crane  v.  Morris'  Lessee,  6  Pet. 
(U.  S.)  598,  611;  Morris  v.  Wheat,  8  App.  D.  C.  379;  Anderson  v.  Reid, 
10  App.  D.  C.  426;  Orthwein  v.  Thomas,  127  111.  554,  11  A.  S.  R.  159; 
Kinsman's  Lessee  v.  Loomis,  11  Ohio,  475;  Stone  v.  Fitts,  38  S.  C.  393, 
See,  also,  §  152 (a),  supra. 

sosCobb  v.  Oldfield,  151  111.  540,  42  A.  S.  R.  263;  Hovey  v.  Wood- 
ward, 33  Me.  470;  Muhlenberg  v.  Druckenmiller,  103  Pa.  631;  Sunder- 
lin  v.  Struthers,  47  Pa.  411;  Linney  v.  Wood,  66  Tex.  22.  See,  also, 
§  152 (a),  supra. 

It  has  been  held,  however,  that  if  a  person  conveys  another's  land  as 
agent,  his  subsequent  grantees  are  estopped  to  assert  that  he  had  no 
authority  to  convey.  Stow  v.  Wyse,  7  Conn.  214,  18  A.  D.  99. 

204  Hovey  v.  Woodward,  33  Me.  470,  477;   Horton  v.  Kelly,  40  Minn. 


g    154a  ESTOPPEL  BY  DEED.  535 

and  their  privies  are  concerned,  this  statement  is  too  broad. 
It  is  subject  to  important  exceptions  in  the  case  of  deeds  poll 
in  regard  both  to  the  assertion  of  a  right  or  title  in  derogation 
of  the  deed  and  to  the  denial  of  facts  recited  in  it.205  In  respect 
to  strangers  to  the  deed,  however,  the  rule  of  mutuality  finds 
a  proper  sphere  of  application.  One  who  is  neither  a  party 
to  a  deed  nor  in  privity  with  a  party  to  it  is  not  estopped 
by  the  deed,200  nor  may  he  take  advantage  of  the  estoppel 
created  by  the  instrument.207 

§  154.    Execution,  validity,  and  construction  of  deed. 

(a)  Execution,  delivery,  and  acceptance.     To  bind  a  grantor 

193;  Stevenson's  Heirs  v.  McReary,  12  Smedes  &  M.  (Tenn.)  9,  51  A. 
D.  102,  114;  Millard  v.  McMullin,  68  N.  Y.  345,  353;  Sparrow  v.  King- 
man,  1  N.  Y.  242,  246,  248. 

205  A  deed  poll  may  estop  the  grantor  and  not  the  grantee.  Section 
153(a),  supra. 

A  recital  may  estop  one  party  and  not  the  other.  Section  152 (a), 
supra. 

2oe  Robinson  v.  Bates,  3  Mete.  (Mass.)  40,  42  (semble);  Davis  v. 
Agnew,  67  Tex.  206,  215. 

207  Re  Ghosts'  Trusts,  49  Law  T.  (N.  S.)  588;  Branson  v.  Wirth,  17 
Wall.  (U.  S.)  32;  Franklin  v.  Dorland,  28  Cal.  175,  87  A.  D.  Ill;  Me- 
Kinney  v.  Lanning,  139  Ind.  170;  Robinson  v.  Bates,  3  Mete.  -(Mass.) 
40;  Stevenson's  Heirs  v.  McReary,  12  Smedes  &  M.  (Miss.)  9,  51  A.  D. 
102;  Jackson  v.  Woodruff,  1  Cow.  (N.  Y.)  276,  13  A.  D.  525;  Kitzmiller  v. 
Van  Rensselaer,  10  Ohio  St.  63;  Sunderlin  v.  Struthers.  47  Pa.  411; 
McCullough  v.  Dashiell,  78  Va.  634. 

However,  recitals  in  a  deed  are  admissible  in  favor  of  a  stranger  as 
admissions  of  the  party  making  them.  Franklin  v.  Dorland,  28  Cal. 
175,  87  A.  D.  111. 

It  has  been  held  that  a  stranger  in  possession  of  land  may,  when 
sued  in  ejectment,  show  that  the  plaintiff,  before  he  acquired  title, 
conveyed  the  land  to  a  third  person,  and  is  so  disentitled  to  recover. 
Perkins  v.  Coleman,  90  Ky.  611.  This  decision  allows  a  stranger  to 
assert  the  estoppel  arising  from  a  deed  made  by  one  without  title,  and 
is  based  on  the  doctrine  that  the  estoppel  operates  to  transfer  the 
after-acquired  title  to  the  grantee  immediately  on  its  acquisition  by  the 
grantor.  In  many  states,  and  perhaps  by  the  better  opinion,  this  de- 
cision would  not  be  sustained.  See  §  151  (c),  supra. 


536  LAW   OF   EVIDENCE.  §   154c 

by  estoppel,  the  deed  must  be  his  own  voluntary  act.  A  deed 
made  pursuant  to  a  judicial  sale  in  proceedings  in  invitum 
does  not  estop  the  debtor  as  grantor  of  the  property  con- 
veyed.208 

A  grantor  is  not  estopped  by  a  deed  which  he  has  never  de- 
livered;209 and  to  create  an  estoppel  against  the  grantee,  he 
must  have  accepted  the  deed.210 

The  failure  to  acknowledge  a  deed  does  not  defeat  the  es- 
toppel as  between  the  parties  and  those  claiming  under  them, 
with  notice  of  the  conveyance.211 

(b)  Modification.     An  estoppel  arising  from  a  deed  may  be 
avoided  by  showing  a  subsequent  modification  of  the  instru- 
ment by  consent  of  the  parties.212 

(c)  Validity.    An  invalid  deed  does  not   create  an  estop- 
pel ;213  and  if  a  deed  is  invalid  as  a  conveyance,  a  covenant  for 

208  McDougald  v.  Dougherty,  11  Ga.  570. 

Accordingly,  the  debtor  is  not  estopped  by  the  deed  from  asserting 
an  after-acquired  title  to  the  property.  Emerson  v.  Sansome,  41  Cal. 
552;  Flenner  v.  Travelers'  Ins.  Co.,  89  Ind.  164;  Frey  v.  Ramsour,  66 
N.  C.  466.  Nor  is  a  judgment  creditor  estopped  by  the  sheriff's  deed 
from  asserting  a  title  subsequently  acquired  by  him  in  the  land  sold 
on  execution.  Henderson  v.  Overton,  2  Yerg.  (Tenn.)  394,  24  A.  D. 
492. 

Privity  between  debtor  and  creditor  and  those  claiming  under  them 
through  a  judicial  sale,  see  page  532,  supra. 

209  Nourse  v.  Nourse,  116  Mass.  101. 

He  may  be  estopped  in  pais  from  denying  delivery,  however,  as 
against  bona  fide  purchasers.  Taylor  v.  Street,  82  Ga.  723,  5  L.  R.  A. 
121. 

210  St.  Louis,  A.  &  T.  H.  R.  Co.  v.  Belleville,  122  111.  376;  Kidder  v. 
Blaisdell,  45  Me.  461. 

211  Wark  v.  Willard.  13  N.  H.  389. 

It  is  otherwise  in  some  states  as  to  conveyances  by  married  women. 
Jackson  v.  Torrence,  83  Cal.  521.  See,  also,  page  540,  infra. 

212  Fox  v.  Windes,  127  Mo.  502,  48  A.  S.  R.  648;  Chloupek  v.  Perotka, 
.89  Wis.  551,  46  A.  S.  R.  858. 

213  Doe  d.  Preece  v.  Howells,  2  Barn.  &  Adol.  744;   Kennedy  v.  Mc- 
'(Cartney's  Heirs,  4  Port.   (Ala.)   141,  158;  Mclntosh  v.  Parker,  82  Ala. 


§  154c  ESTOPPEL  BY  DEED.  537 

title  therein  does  not,  by  the  better  opinion,  create  an  estop- 
pel.214 

The  fact  that  the  grantor  has  received  a  discharge  in  bank- 
ruptcy after  making  the  deed  does  not  defeat  an  estoppel 
created  by  a  covenant  in  it,  and  so  permit  the  grantor  to 
assert  an  after-acquired  title.216  Nor  is  the  estoppel  defeated 

238;  Moses  v.  McClain.  82  Ala.  370;  Shorman  v.  Eakin,  47  Ark.  351; 
Chase  v.  Cartright,  53  Ark.  358,  22  A.  S.  R.  207;  Smith  v.  Penny,  44 
Cal.  161,  163,  165;  Caffrey  v.  Dudgeon,  38  Ind.  512,  10  A.  R.  126;  James 
v.  Wilder,  25  Minn.  305. 

One  who  executes  a  deed  despite  a  restraining  order  enjoining  him 
from  so  doing  is  estopped  from  invalidating  the  deed  for  that  cause. 
Wilson  v.  Western  N.  C.  Land  Co..  77  N.  C.  445. 

Capacity  of  parties.  A  grantor  may  be  estopped  in  pais  from  assert- 
ing that  the  grantee  had  no  power  to  accept  the  grant.  Shawhan  v. 
Long,  26  Iowa,  488,  96  A.  D.  164.  Estoppel  by  deed  of  person  non  sui 
juris,  see  page  539,  infra.  Estoppel  to  deny  capacity  of  cor- 
poration to  accept  deed,  see  §  157  (b),  infra.  Estoppel  of  state  by 
void  grant,  see  page  541,  infra. 

Estoppel  by  covenant  or  recital  to  assert  non  est  factum  or  invalidity. 
A  recital  in  a  bond  does  not  estop  the  obligor  from  setting  up  that  the 
bond  is  not  his  deed.  Singer  Mfg.  Co.  v.  Elizabeth,  42  N.  J.(Law,  249. 
A  recital  in  a  statutory  bond  does  not  estop  the  obligor  from  showing 
that  the  bond  is  void  because  the  conditions  prescribed  by  statute  have 
not  been  complied  with.  Germond  v.  People,  1  Hill  (N.  Y.)  343.  If 
logs  not  subject  to  a  lien  are  attached  under  color  of  the  lien  law,  the 
owner,  by  giving  the  statutory  bond  to  regain  possession,  does  not 
estop  himself  to  deny  the  lien.  Shevlin  v.  Whelen,  41  Wis.  88.  A 
covenant  that  a  certain  statutory  prerequisite  exists  which  is  neces- 
sary to  give  validity  to  the  deed  does  not  preclude  an  inquiry  into  the 
truth  of  the  matter.  Doe  d.  Chandler  v.  Ford,  3  Adol.  &  E.  649. 

2i*Kercheval  v.  Triplett's  Heirs,  1  A.  K.  Marsh.  (Ky.)  493;  Connor 
v.  McMurray,  2  Allen  (Mass.)  202,  204;  Alt  v.  Banholzer,  39  Minn.  511, 
12  A.  S.  R.  681;  Adams  v.  Ross,  30  N.  J.  Law,  505,  82  A.  D.  237;  Cham- 
berlain v.  Spargur,  86  N.  Y.  603.  Contra,  Brown  v.  Manter,  21  N.  H. 
528,  53  A.  D.  223;  Long  Island  R.  Co.  v.  Conklin,  29  N.  Y.  572;  Shaw 
v.  Galbraith,  7  Pa.  111. 

So,  if  the  deed  is  inoperative,  a  recital  in  it  cannot  work  an  estoppel. 
Conant  v.  Newton,  126  Mass.  105;  Wallace's  Lessee  v.  Miner,  6  Ohio, 
366. 

215  Bush  v.  Person,  18  How.  (U.  S.)  82;  Stewart  v.  Anderson,  10  Ala. 


538  LAW   OF   EVIDENCE.  §    154C 

by  the  fact  that  an  action  on  the  covenant  has  become  barred 
by  limitations.216 

If  a  deed  is  valid  as  to  one  of  several  grantors,  it  may  estop 
him,  though  it  is  void  as  to  the  others.217  So,  a  deed  that  is 
valid  as  between  the  parties  may  estop  the  grantor,  although 
it  is  void  as  to  third  persons.218 

Fraud  and  mistake.  A  deed  procured  by  fraud  does 

not  create  an  estoppel  against  the  grantor.219  If  the  fraud 
was  perpetrated  by  the  grantor  himself,  however,  he  is  estop- 
ped by  the  deed.220  Thus,  a  deed  made  for  the  purpose  of 
defrauding  third  persons  works  an  estoppel  against  the  gran- 
tor,221 so  long  as  the  conveyance  stands  unassailed  by  the  per- 
sons defrauded.222 

504;  Chamberlain  v.  Meeder,  16  N.  H.  381;  Gregory  v.  Peoples,  80  Va. 
355.  And  see  Gibbs  v.  Thayer,  6  Gush.  (Mass.)  30. 

This  applies  also  to  sales  of  personal  property.  Dorsey  v.  Gassaway, 
2  Har.  &  J.  (Md.)  402,  3  A.  D.  557. 

However,  if  a  mortgage  is  discharged  by  judicial  sale,  and  the  mort- 
gagor is  afterwards  discharged  in  bankruptcy,  his  subsequent  pur- 
chase of  the  premises  does  not  revive  the  mortgage,  and  he  is  not 
estopped  to  assert  his  new  title  against  the  mortgagee.  Rauch  v. 
Dech,  116  Pa.  157,  2  A.  S.  R.  598. 

2ieCole  v.  Raymond,  9  Gray  "(Mass.)  217. 

217  Chapman  v.  Abrahams,  61  Ala.  108;  Doe  d.  Wellborn  v.  Finley,  52 
N.  C.  (7  Jones)  228. 

A  deed  made  by  a  person  as  guardian  may  estop  him  individually, 
although  it  is  void  as  to  the  ward.  Wells  v.  Steckelberg,  52  Neb.  597, 
66  A.  S.  R.  529.  So,  a  deed  made  by  an  agent  individually  in  an  at- 
tempt to  execute  a  power  of  attorney  may  estop  him,  though  it  is  not 
binding  on  the  principal.  North  v.  Henneberry,  44  Wis.  306. 

218  Stockton  v.  Williams,  1  Doug.   (Mich.)   546. 
2i9Bigelow,  Estop.  (5th  Ed.)  352. 

The  grantor's  negligence  may  create  an  estoppel  in  pais  precluding 
him  from  asserting  the  fraud,  however.  McNeil  v.  Jordan,  28  Kan.  7; 
Charleston  v.  Ryan,  22  S.  C.  339,  53  A.  R.  713.  The  grantor  may  like- 
wise be  estopped  to  assert  forgery.  Blaisdell  v.  Leach,  101  Cal.  405, 
40  A.  S.  R.  65. 

220  Smith  v.  Ingram,  130  N.  C.  100.  61  L.  R.  A.  878. 


§   154C  ESTOPPEL  BY  DEED.        •  539 

A  deed  which  is  void  for  mistake  does  not  create  an  estop- 
pel,223 -and,  in  equity  at  least,  a  recital  founded  on  mistake  is 
not  binding.224 

Parties  under  disability.  A  person  non  sui  juris  is  not 

estopped  by  his  deed.  A  deed  made  by  an  infant,  for  example, 
does  not  estop  him225  during  his  infancy;  nor  afterwards,  if 
he  disaffirms  it. 

The  rule  is  the  same  at  common  law  with  reference  to  mar- 
ried women,220  except  in  regard  to  their  equitable  separate 

221  Glover  v.  Walker,  107  Ala.  540;  Bush  v.  Rogan,  65  Ga.  320,  38  A. 
R.  785;   Peterson  v.  Brown,  17  Nev.  172,  45  A.  R.  437. 

222  Cox  v.  Wilder,  2  Dill.  45,  Fed.  Gas.  No.  3,308;   Kennedy  v.  First 
Nat.  Bank,  107  Ala.  170;  Lockett's  Adm'x  v.  James,  8  Bush   (Ky.)  28; 
Robinson  v.  Bates,  3  Mete.  (Mass.)  40;  Horton  v.  Kelly,  40  Minn.  193; 
Sears  v.  Hanks,  14  Ohio  St.  298,  84  A.  D.  378. 

223  See  Gjerstadengen  v.  Hartzell,  9  N.  D.  268,  81  A.  S.  R.  575. 

224  Brooke  v.  Haymes,  L.  R.  6  Eq.  25;  Bower  v.  McCormick,  23  Grat. 
(Va.)  310. 

225  Cook  v.  Toumbs,  36  Miss.  685;  Houston  v.  Turk,  7  Yerg.   (Tenn.-) 
13. 

So,  if  a  deed  provides  that  the  grantee  shall  have  no  power  to  dis- 
pose of  the  property  before  reaching  a  certain  age,  the  grantee  is  not 
estopped  by  a  deed  executed  by  him  before  reaching  the  age  specified; 
nor  is  there  any  estoppel  on  one  claiming  under  him  by  a  deed  made 
after  he  has  arrived  at  that  age.  Dougal  v.  Fryer,  3  Mo.  40,  22  A.  D. 
458.  See,  however,  McWilliams  v.  Nisly,  2  Serg.  &  R.  (Pa.)  507,  7  A. 
D.  654. 

Generally  .speaking,  the  executed  contracts  of  an  infant  are  valid  and 
operative  until  disaffirmed,  while  his  executory  contracts  are  invalid 
unless  he  ratifies  them  'after  he  attains  his  majority.  His  deed  of  con- 
veyance therefore  passes  title,  subject  to  defeat  only  by  a  disaffirmance 
of  the  conveyance  when  he  arrives  at  full  age.  And  if,  when  he  reaches 
his  majority,  he  wishes  to  avoid  the  deed,  he  must  do  so  within  a  rea- 
sonable time.  Hammon,  Cont.  §§  171,  175a.  It  would  seem,  therefore, 
that  if  a  person  makes  a  deed  in  infancy,  and  does  not  take  means  to 
disaffirm  it  within  a  reasonable  time  after  reaching  majority,  it  binds 
him  by  estoppel. 

226  Bank  of  America  v.  Banks,  101  U.  S.  240;  Wood  v.  Terry,  30  Ark. 
385;   Henry  v.  Sneed,  99  Mo.  407,  17  A.  S.  R.  580;   Den  d.  Hopper  v. 
Demarest,  21  N.  J.  Law,  525. 


540  LAW  OF  EVIDENCE.  §  154C 

estate.227  The  protection  of  this  rule  does  not  extend  to  a  re- 
lease of  the  right  of  dower,  however.  By  that,  a  married  wo- 
man is  estopped  subsequently  to  assert  the  right.228  But  she  is 
estopped  no  further  than  this.  By  joining  the  husband  in  a 
warranty  deed  of  his  land  for  the  purpose  of  releasing  her  in- 
choate right  'of  dower,  the  wife  is  not  estopped,  even  in  those 
jurisdictions  where  her  disabilities  have  been  removed  by  stat- 
ute, from  asserting  a  title  afterwards  acquired  from  another 
source.229 

Modern  statutes  enlarging  the  power  of  a  married  woman 
in  regard  to  conveyancing  have  to  the  same  extent  enlarged 
her  liability  by  estoppel  by  deed.230  If,  however,  a  statute  al- 

227  Jones  v.  Reese,  65  Ala.  134;   Nash  v.  Spofford,  10  Mete.   (Mass.) 
192,  43  A.  D.  425;  Powell's  Appeal,  98  Pa.  403,  413. 

While  a  married  woman  may  convey  her  lands  by  joining  with  her 
husband  in  a  deed,  and  thus  estop  herself  and  her  heirs  from  setting 
up  against  the  grantee  any  title  she  may  have  had  when  the  deed  was 
made,  yet  her  covenant  of  warranty  in  the  deed  does  not  estop  her  from 
setting  up  an  after-acquired  title.  Wadleigh  v.  Glines,  6  N.  H.  17,  23 

A.  D.  705;  Martin  v.  Dwelly,  6  Wend.   (N.  Y.)  9,  21  A.  D.  245.     Some 
cases  hold  the  contrary  as  to  asserting  an  after-acquired  title.    King  v. 
Rea,    56    Ind.    1;    Massie   v.    Sebastian,   4    Bibb    (Ky.)    433.    And   see 
Fletcher  v.  Coleman,  2  Head  (Tenn.)  383,  388. 

228  Usher  v.  Richardson,  29  Me.  415;  Stearns  v.  Swift,  8  Pick.  (Mass.) 
532.     And  see  Smith  v.  Oglesby,  33  S.  C.  194. 

To  estop  her  from  claiming  dower,  she  must  release  it.  Merely  join- 
ing in  her  husband's  deed  does  not  preclude  her.  Powell  v.  Monson  & 

B.  Mfg.  Co.,  3  Mason,  347,  Fed.  Gas.  No.  11,356;  Lothrop  v.  Foster,  51 
Me.  367;  Lufkin  v.  Curtis,  13  Mass.  223. 

229  Threefoot  v.  Hillman,  130  Ala.  244,  89  A.  S.  R.  39;    Gonzales  v. 
Hukil,  49  Ala.  260,  20  A.  R.  282;   Jefferson  v.  Edrington,  53  Ark.  545; 
Sanford  v.  Kane,  133  111.  199,  23  A.  S.  R.  602;  Miller  v.  Miller,  140  Ind. 
174;   Childs  v.  McChesney,  HO  Iowa.  431,  89  A.  D.  545;   Griffin  v.  Shef- 
field, 38  Miss.  359,  77  A.  D.  646;  Burston  v.  Jackson,  9  Or.  275;  Tyler 
v.  Moore    (Pa.)   17  Atl.  216.     And  see  Trentman  v.  Eldridge,  98  Ind. 
525;  Goodenough  v.  Fellows,  53  Vt.  102. 

2soYerkes  v.  Hadley,  5  Dak.  324,  2  L.  R.  A.  363;  Guertin  v.  Mom- 
bleau,  144  111.  32;  King  v.  Rea,  56  Ind.  1,  17;  Knight  v.  Thayer,  125 


§   154d  ESTOPPEL  BY  DEED.  541 

iows  a  married  woman  to  make  conveyances  only  in  a  specified 
mode  or  for  a  specified  purpose,  a  deed  which  does  not  com- 
ply with  the  prescribed  requirements,  or  which  is  given  for 
any  other  purpose,  does  not  work  an  estoppel.231 

It  has  been  held  that  a  corporation  is  not  estopped  by  a  deed 
which  it  had  no  power  to  make.232 

By  the  better  opinion,  the  state  may  be  estopped  by  deed, 
the  same  as  an  individual.233 

(d)  Construction — Truth  appearing  on  face  of  deed.  When 
a  deed  is  put  forward  as  working  an  estoppel,  there  is  often  a 
preliminary  question  as  to  the  meaning  and  effect  of  the  in- 
strument. If  it  is  asserted  that  the  deed  estops  the  grantor  to 
assert  a  derogatory  right  or  title,  it  is  necessary  to  ascertain 
what  right  or  title  the  deed  purports  to  convey.  If  an  estoppel 

Mass.  25;  Sandwich  Mfg.  Co.  v.  Zelmer,  48  Minn.  408;  Zimmerman  v. 
Robinson,  114  N.  C.  39;  Graham  v.  Meek,  1  Or.  325. 

23i  Harden  v.  Darwin,  77  Ala.  472;  Levering  v.  Shockey,  100  Ind. 
558;  Louisville,  etc.,  R.  Co.  v.  Stephens,  9G  Ky.  401,  49  A.  S.  R.  303; 
Bohannon  v.  Travis,  94  Ky.  59;  Merriam  v.  Boston,  C.  &  F.  R.  Co.,  117 
Mass.  241;  Naylor  v.  Minock,  96  Mich.  182,  35  A.  S.  R.  595;  Smith  v. 
Ingram,  132  N.  C.  959,  95  A.  S.  R.  680. 

282  in  re  Companies  Acts,  21  Q.  B.  Div.  301. 

The  same  is  true  of  a  deed  made  by  municipal  officers  in  excess  of 
their  statutory  powers.  Fairtitle  v.  Gilbert,  2  Term  R.  169.  And  see 
§  152  (b),  supra. 

233  Branson  v.  Wirth,  17  Wall.  (U.  S.)  32,  42  (semble) ;  State  v. 
Brewer,  64  Ala.  287  (semble);  Com.  v.  Andres'  Heirs,  3  Pick.  (Mass.) 
224;  St.  Paul,  S  &  T.  F..  R.  Co.  v.  St.  P.  &  P.  R.  Co.,  26  Minn.  31,  34; 
Heyward  v.  Farmers'  Min.  Co.,  42  S.  C.  138,  46  A.  S.  R.  702,  717.  And 
see  Nieto's  Heirs  v.  Carpenter,  7  Cal.  527. 

Some  cases  hold  the  contrary.  Doe  d.  Taylor  v.  Shufford,  11  N.  C. 
(4  Hawks)  116,  15  A.  D.  512.  The  doctrine  of  estoppel  does  not  apply 
to  the  state,  so  as  to  pass  an  after-acquired  title.  Casey's  Lessee  v. 
Inloes,  1  Gill  (Md.)  430,  39  A.  D.  658.  The  state  can  be  estopped  from 
asserting  Its  right  to  its  property  only  by  legislative  enactment  or 
resolution.  Alexander  v.  State,  56  Ga.  478.  Where  the  sovereign  is  not 
bound,  his  assignee  is  not.  Doe  d.  Wallace  v.  Maxwell,  32  N.  C.  (10 
Ired.)  110,  51  A.  D.  380. 


542  LAW  OF  EVIDENCE.  §  155 

is  asserted  to  arise  from  given  covenants  or  recitals,  it  is  neces- 
sary to  determine  their  meaning  and  extent.  These  ques- 
tions are  solved  by  resort  to  recognized  rules  of  construction, 
which  are  not  peculiarly  related  to  the  law  of  estoppel.  It 
is  sufficient  here  to  mention  one  only, — that  a  deed  upon  which 
an  estoppel  is  predicated  must,  as  in  other  cases  of  contested 
meaning  and  effect,  be  construed  as  a  whole.  Each  provision 
is  to  be  interpreted  with  reference  to  the  others.  Particular 
expressions  are  not  controlling  if  the  evident  intention  of  the 
parties,  as  gathered  from  the  entire  writing,  runs  to  the  con- 
trary.234 It  is  perhaps  an  indirect  expression  of  this  rule  of 
construction  to  say,  as  is  sometimes  said,235  that  there  is  no 
estoppel  if  the  truth  appears  on  the  face  of  the  deed. 

§  155.    Estoppel  against  estoppel. 

Estoppel  against  estoppel  commonly  sets  the  matter  at 
large.236  Thus,  if  both  parties  claim  under  the  same  person, 

23-tBigelow,  Estop.  (5th  Ed.)  362;  Hammon,  Cont.  §  401;  Doe  d.  Mc- 
Gill  v.  Shea,  2  U.  C.  Q.  B.  483,  486;  Bower  v.  McCormick,  23  Grat.  (Va.) 
310. 

235  Pelletreau  v.  Jackson,  11  Wend.  (N.  Y.)  110,  118. 
-  This  doctrine  does  not  prevail  in  England.     Morton  v.  Woods,  L.  R. 
4  Q.  B.  293,  303. 

"Whether  the  appearance  of  the  truth  on  the  face  of  the  instrument 
will  defeat  an  estoppel  or  not  must  altogether  depend  upon  the  fact 
whether  it  is  so  expressed  that  it  can  be  readily  seen  and  understood 
by  the  person  who  ought  to  be  influenced  by  it,  or  in  manner  so  tech- 
nical or  obscure  that  although  it  must  be  admitted  it  appears  in  the 
instrument,  yet  it  is  certain  it  was  not  seen  nor  understood  by  the  per- 
son who  should  have  been  influenced  by  it,  but  that  he  dealt  with 
the  party  sought  to  be  estopped  as  though  the  words  on  which  the 
estoppel  is  founded  expressed  the  whole  truth."  Hannon  v.  Chris- 
topher, 34  N.  J.  Eq.  459,  465. 

236Hoboken  v.  Pa.  R.  Co.,  124  U.  S.  656,  693;  Branson  v.  Wirth,  17 
Wall.  (U.  S.)  32,  42;  Doe  d.  Taylor  v.  Shufford,  11  N.  C.  (4  Hawks) 
116,  15  A.  D.  512,  515.  See  Brown  v.  Staples,  28  Me.  497,  48  A.  D.  504; 
Utica  Bank  v.  Mersereau,  3  Barb.  Ch.  (N.  Y.)  528,  49  A.  D.  189,  200. 


§   156  ESTOPPEL   BY   CONTRACT.  543 

and  one  is  estopped  by  one  deed,  and  the  other  is  estopped  by 
another  deed,  both  made  by  that  person,  one  estoppel  offsets 
the  other,  and  the  right  of  the  parties  must  be  adjusted  with- 
out regard  to  any  estoppel.237  If,  however,  upon  a  conveyance 
of  lands  with  covenants  for  title,  the  grantee  gives  back  a  mort- 
gage or  trust  deed  with  like  covenants  to  secure  the  price,  he 
is  not  estopped  by  his  covenants  from  asserting  a  breach  on 
the  part  of  his  grantor.238 

ART.   IV.     ESTOPPEL    BY   CONTRACT. 

General  considerations,  §  156. 

Facts  settled  by  contract,  §  157. 
•  (a)  General  rule. 

(b)  Existence  and  power  of  corporation. 

(c)  Intention  of  parties. 

Acts  done  under  contract — Possession,  §  158. 

(a)  Grantor  and  grantee. 

(b)  Vendor  and  purchaser. 

(c)  Landlord  and  tenant. 

(d)  Bailor  and  bailee. 

§  156.     General  considerations. 

There  are  two  forms  of  estoppel  by  contract,  viz.:  (1)  Es- 
toppel to  deny  facts  agreed  upon  or  assumed  to  exist  as  the 
basis  of  the  contract;  and  (2)  estoppel  arising  from  acts  done 
in  performance  of  the  contract.  The  first  form,  though  some- 
times classified  as  such,  is  not,  in  strict  propriety,  a  species  of 
estoppel  in  pais.  It  is  analogous  to  estoppel  by  deed,  and  the 
principle  which  dominates  it  is  perhaps  the  same.  The  second 
form  of  estoppel  by  contract  arises,  not  from  the  writing  alone, 
but  from  acts  done  in  performance  of  the  contract.  It  there- 
fore is  a  species  of  estoppel  in  pais. 

237  Carpenter  v.  Thompson,  3  N.  H.  204.  14  A.  D.  348. 
zss  Sumner  v.  Barnard,  12  Mete.   (Mass.)   459;   Resser  v.  Carney,  52 
Minn.  397;  Connor  v.  Eddy,. 25  Mo.  72;  Haynes  v.  Stevens,  11  N.  H.  28. 


544  LAW    OF   EVIDENCE.  §   156 

Estoppel  by  contract,  it  should  be  observed,  does  not  include 
cases  of  estoppel  not  arising  by  or  by  virtue  of  the  contract 
itself,  though  arising  in  the  course  of  the  contract.  If  the  es- 
toppel is  no  part  of  the  contract  itself,  or  of  its  legal  effect, 
it  belongs  to  estoppel  by  misrepresentation,  express  or  im- 
plied.239 

This  species  of  estoppel  presupposes  the  existence  of  a  valid 
contract.  An  illegal  contract  does  not  create  an  estoppel.240 

Cases  are  to  be  found  wherein  it  is  said  that  an  instrument 
not  under  seal  cannot  of  itself  create  an  estoppel  similar  to 
that  created  by  deed.241  In  reason,  however,  this  dictum  has 
no  foundation,  and,  by  the  weight  of  authority,  it  is  repudi- 
ated.242 In  those  jurisdictions  wherein  private  seals  have  been 
abolished,  an  unsealed  writing  may  create  an  estoppel  of  the 
same  nature  as  estoppel  by  deed.243 

239Bigelow,  Estop.  (5th  Ed.)  455. 

240  Dupas  v.  Wassell,  1  Dill.  213,  Fed.  Gas.  No.  4,182;    Shorman  v. 
Eakin,  47  Ark.  351;  Langan  v.  Sankey,  55  Iowa,  52;  Tate  v.  Commer- 
cial Bldg.  Ass'n,  97  Va.  74,  75  A.  S.  R.  770. 

241  Shelton  v.  Alcox,  11  Conn.  239,  249;  Davis  v.  Tyler,  18  Johns.  (N. 
Y.)  490. 

242  Carpenter  v.  Buller,  8  Mees.  &  W.  209.  212. 

In  a  certain  aspect,  indeed,  the  principle  of  estoppel  is  a  substantive 
part  of  the  law  of  contract.  If  a  person  so  speaks  or  acts  as  to  lead 
a  reasonable  man  to  believe  that  he  makes  or  assents  to  a  particular 
proposition,  it  constitutes  in  law  an  offer  or  an  acceptance,  as  the 
case  may  be,  and  a  contract  may  result  in  spite  of  any  mental  reserva- 
tion or  secret  dissent.  Holland,  Jur.  228-234;  Hammon,  Cent.  pp.  8, 
58,  100,  106,  110,  120.  So,  if  a  man,  in  entering  into  an  apparent 
agreement,  uses  words  which  express  a  meaning  different  from  his 
ac/tual  intent,  a  contract  ordinarily  arises  in  spite  of  that  difference. 
Having  the  power  to  choose  his  words,  he  is  held  to  the  true  mean- 
ing of  those  he  adopts.  Hammon,  Cont.  pp.  783,  813.  In  each  case  he 
is  bound  by  the  principle  which  dominates  the  law  of  estoppel,  sup- 
plemented sometimes  by  a  rule  of  interpretation  or  construction.  2 
Mich.  Law  Rev.  106. 

243  Jones  v.  Morris,  61  Ala.  518. 


§   157b  ESTOPPEL  BY   CONTRACT.  545 

§  157.    Facts  settled  by  contract. 

(a)  General  rule.     If,  in  making  a  contract,  the  parties  agree 
upon  or  assume  the  existence  of  a  particular  fact  as  the  basis 
of  their  negotiations,  they  are  estopped  to  deny  the  fact  so 
long  as  the  contract  stands.244     If,  for  example,  a  person  en- 
ters into  a  contract  in  a  representative  capacity,  and  the  con- 
tract is  made  on  that  basis,  both  parties  are  estopped  to  deny 
that  he  occupied  that  position  or  sustained  that  character.245 

(b)  Existence  and  power  of  corporation.    Important  illus- 
trations of  this  principle  occur  in  the  law  of  corporations. 
A  body  assuming  to  enter  into  a  contract  as  a  corporation  is 
estopped  to  assert  any  defect  in  its  organization  for  the  pur- 
pose of  escaping  liability  to  the  other  party  to  the  contract, 
where  he  had  no  notice  of  the  defect  when  the  contract  was 
made.246     So,  one  who  enters  into  a  contract  with  a  de  facto 
corporation  is  ordinarily  estopped  to  attack  its  legal  existence 
for  the  purpose  of  avoiding  the  effect  of  the  contract,247  un- 

244  Fourth  Nat.  Bank  v.  Olney,  63  Mich.  58;   Delaney  v.  Butcher,  23 
Minn.  373;  Hoeger  v.  Chicago,  M.  &  St.  P.  R.  Co.,  63  Wis.  100,  53  A.  R. 
271. 

245  Hill  v.  Huckabee,  52  Ala.  155;   Du  Val  v.  Marshall,  30  Ark.  230. 
See,  also,  State  v.  Stone,  40  Iowa,  547;  State  v.  Spaulding,  24  Kan.  1. 

246  Dooley  v.  Cheshire  Glass  Co.,  15  Gray  (Mass.)  494;  Attorney  Gen- 
eral v.  Simonton,  78  N.  C.  57.     Contra,  Boyce  v.  Towsontown  Station, 
46  Md.  359. 

The  stockholders  are  likewise  estopped  when  sued  upon  their  indi- 
vidual liability.  McCarthy  v.  Lavasche,  89  111.  270,  31  A.  R.  83;  Hager- 
man  v.  Ohio  Bldg.  &  Sav.  Ass'n,  25  Ohio  St.  186. 

247  Close  v.  Glenwood  Cemetery,  107  U.  S.  466,  477;  Owensboro  Wagon 
Co.  v.  Bliss,  132  Ala.  253,  90  A.  S.  R.  907;  Camp  v.  Land,  122  Cal.  167; 
Booske  v.  Gulf  Ice  Co.,  24  Fla.  550;  Imboden  v.  Etowah  &  B.  B.  H.  H. 
Min.  Co.,  70  Ga.  86;  McLaughlin  v.  Citizens'  Bldg.,  L.  &  Sav.  Ass'n,  62 
Ind.   264;    Franklin   v.   Twogood,    18    Iowa,    515;    Massey   v.   Citizens' 
Bldg.  &  Sav.  Ass'n,  22  Kan.  624;  Osgood  v.  Abbott,  58  Me.  73;  Butchers' 
ft  D.  Bank  v.  McDonald,  130  Mass.  264;  Estey  Mfg.  Co.  v.  Runnels,  55 
Mich.    130;    Bradley   v.   Reppell,   133    Mo.    545.   54   A.   S.   R.    685,    688 

Hammon,  Ev. — 35. 


546  LAW   OF  EVIDENCE.  §  1575 

less  there  was  fraud  in  securing  recognition  as  a  corpora- 
tion.248 

The  courts  do  not  agree  as  to  the  effect  of  an  ultra  vires 
contract  with  a  corporation,  and  therefore  it  is  not  possible  to 
formulate  a  general  rule  which  will  apply  in  all  jurisdictions. 
The  following  has  been  given  as  a  summary  of  the  deci- 
sions:249 First.  If  the  contract  is  fully  executed  on  both 
sides,  the  courts  will  not  interfere  to  deprive  either  party  of 
what  has  been  acquired  under  it.250  Second.  If  the  contract 
is  executory  on  both  sides,  it  is  void,  and,  as  a  rule,  neither 
party  can  maintain  an  action,  either  for  specific  performance  or 
to  recover  damages  for  nonperformance  ;251  and  this  rule  ap- 

(semble).  See,  however,  Duke  v.  Taylor,  37  Fla.  64,  53  A.  S.  R.  232; 
Welland  Canal  Co.  v.  Hathaway,  8  Wend.  (N.  Y.)  480,  24  A.  D.  51. 

It  has  been  held  that  the  estoppel  does  not  arise  where  the  person 
who  dealt  with  the  corporation  seeks  to  charge  its  members  as  part- 
ners. In  re  Mendenhall,  9  N.  B.  R.  497,  Fed.  Gas.  No.  9,425;  Williams 
v.  Hewitt,  47  La.  Ann.  1076.  49  A.  S.  R.  394;  Glenn  v.  Bergmann,  20 
Mo.  App.  343.  Contra,  Snider  Sons'  Co.  v.  Troy,  91  Ala.  224,  24  A.  S. 
R.  887;  Kleckner  v.  Turk,  45  Neb.  176. 

The  estoppel  cannot  be  urged  unless  there  was  a  corporation  de 
facto.  Jones  v.  Aspen  Hardware  Co.,  21  Colo.  263,  52  A.  S.  R.  220; 
Indiana  Bond  Co.  v.  Ogle,  22  Ind.  App.  593.  72  A.  S.  R.  326. 

248Bigelow,  Estop.  (5th  Ed.)  463,  464;  Doyle  v.  Mizner,  42  Mich. 
332. 

249  Marshall,  Corp.  §§  83-92. 

250  First  Nat.  Bank  v.  Stewart,  107  U.  S.  676;  Long  v.  Ga.  Pac.  R.  Co., 
91  Ala.  519,  24  A.  S.  R.  931;  Hough  v.  Cook  County  Land  Co.,  73  111. 
23,  24  A.  R.  230;  Holmes  &  G.  Mfg.  Co.  v.  Holmes  &  W.  M.  Co.,  127  N. 
Y.  252,  24  A.  S.  R.  448;  Leazure  v.  Hillegas,  7  Serg.  &  R.   (Pa.)  313; 
Fayette  Land  Co.  v.  Louisville  &  N.  R.  Co.,  93  Va.  274. 

zsiAshbury,  R.  C.  &  I.  Co.  v.  Riche,  L.  R.  7  H.  L.  653;  Central 
Transp.  Co.  v.  Pullman's  P.  Car  Co.,  139  U.  S.  24;  McNulta  v.  Corn  Belt 
Bank,  164  111.  427,  56  A.  S.  R.  203;  Davis  v.  Old  Colony  R.  Co.,  131 
Mass.  258,  41  A.  R.  221;  Day  v.  Spiral  S.  B.  Co.,  57  Mich.  146,  58  A. 
R.  352;  Downing  v.  Mount  Wash.  R.  Co.,  40  N.  H.  230;  Nassau  Bank 
v.  Jones,  95  N.  Y.  115,  47  A.  R.  14;  Coppin  v.  Greenlees  &  R.  Co.,  38 
Ohio  St.  275,  43  A.  R.  425;  Northwestern  U.  P.  Co.  v.  Shaw,  37  Wis.  655, 
19  A.  R.  781. 


§   157b  ESTOPPEL  BY  CONTRACT.  547 

plies,  notwithstanding  the  contract  has  been  partly  performed 
on  both  sides.252  Third.  Where  the  contract  is  executory  on 
one  side  only,  and  has  been  fully  executed  on  the  other,  so 
that  one  of  the  parties  has  furnished  the  consideration,  in 
money,  property,  or  services,  for  the  promise  of  the  other,  the 
courts  differ  as  to  whether  an  action  will  lie  on  the  contract 
by  the  party  thus  furnishing  the  consideration,  (a)  Some 
courts  hold  that  the  express  contract  is  void,  and  that  no  ac- 
tion will  lie  upon  it,  the  remedy,  if  any,  being  quasi  ex  con- 
traetu  for  what  has  been  received  under  the  contract.253  (b) 
Other  courts  hold  that  the  party  thus  receiving  the  considera- 
tion is  estopped  to  set  up  that  the  contract  is  ultra  vires,  in 
order  to  defeat  an  action  on  the  contract.254  Fourth.  When 
either  of  the  parties  to  an  ultra  vires  contract  has  received 
money  or  property  under  the  same,  it  must  be  restored  on 
repudiating  the  contract;255  and  therefore,  (a)  when  one  of 
the  parties  repudiates  an  ultra  vires  contract  after  receiving 

252Ashbury,  R.  C.  &  I.  Co.  v.  Riche,  L.  R.  7  H.  L.  653;  Thomas  v. 
West  Jersey  R.  Co.,  101  U.  S.  71;  Day  v.  Spiral  S.  B.  Co.,  57  Mich.  146, 
58  A.  R.  352;  Mallory  v.  Hanaur  Oil  Works,  86  Tenn.  598. 

ass  Ashbury,  R.  C.  &  I.  Co.  v.  Riche,  L.  R.  7  H.  L.  653 ;  Central  Transp. 
Co.  v.  Pullman's  Palace  Car  Co.,  139  U.  S.  24;  Sherwood  v.  Alvis,  83  Ala. 
115,  3  A.  S.  R.  695;  Best  Brew.  Co.  v.  Klassen,  185  111.  37,  76  A.  S. 
R.  26;  Brunswick  Gas  Light  Co.  v.  United  Gas,  F.  &  L.  Co..  85  Me.  532, 
35  A,  S.  R.  385;  Davis  v.  Old  Colony  R.  Co.,  131  Mass.  258,  41  A.  R.  221; 
Downing  v.  Mount  Wash.  R.  Co.,  40  N.  H.  230;  Buckeye  Marble  &  F. 
Co.  v.  Harvey,  92  Tenn.  115,  36  A.  S.  R.  71;  Northwestern  Union 
Packet  Co.  v.  Shaw,  37  Wis.  655,  19  A.  R.  781. 

so*  Denver  Fire  Ins.  Co.  v.  McClelland,  9  Colo.  11,  59  A.  R.  134;  State 
Board  v.  Citizens'  St.  R.  Co.,  47  Ind.  407,  17  A.  R.  702;  Day  v.  Spiral 
S.  B.  Co.,  57  Mich.  146,  58  A.  R.  352;  Camden  &  A.  R.  Co.  v.  May's  L.  & 
E.  H.  C.  R.  Co.,  48  N.  J.  Law,  530;  Whitney  Arms  Co.  v.  Barlow,  63  N. 
Y.  62,  20  A.  R.  504;  Wright  v.  Pipe  Line  Co.,  101  Pa.  204,  47  A.  R.  701; 
Bond  v.  Terrell  C.  &  W.  Mfg.  Co.,  82  Tex.  309.  See,  however,  Hubbard 
v.  Haley,  96  Wis.  578. 

zoo  Manchester  &  L.  R.  Co.  v.  Concord  R.  Co.,  66  N.  H.  100,  49  A. 
S.  R.  582. 


548  LAW   OF  EVIDENCE. 

money,  property,  or  services  under  it,  the  other  party  may 
maintain  an  action  on  implied  or  quasi  contract  to  recover  the 
money  or  the  value  of  the  property  or  services.256  (b)  In  a 
proper  case  he  may  have  an  accounting  in  equity.257  (c)  Res- 
toration of  the  money  or  property  will  be  required  in  equity 
before  granting  relief  by  way  of  rescission.258  Fifth.  A  cor- 
poration is  liable  on  a  contract  which  is  apparently  within  its 
powers,  although  it  is  rendered  ultra  vires  by  reason  of  ex- 
trinsic facts,  if  such  facts  were  not  within  the  knowledge  of 
the  other  party.259  So,  if  a  corporation  has  the  power,  under 
some  circumstances,  to  become  a  party  to  negotiable  instru- 
ments, and  it  does  so  for  an  unauthorized  purpose,  it  cannot 
set  up  the  defense  of  ultra  vires  as  against  a  bona  fide  pur- 
chaser for  value.280  Sixth.  If  a  contract  is  ultra  vires  in  part 
only,  the  part  which  is  authorized  may  be  enforced  if  it  can 
be  separated  from  the  part  which  is  unauthorized.261  Seventh. 

256Morville  v.  American  T.  Soc.,  123  Mass.  129,  25  A.  R.  40;  Day 
v.  Spiral  S.  B.  Co.,  57  Mich.  146,  58  A.  R.  352;  Northwestern  U.  P.  Co. 
v.  Shaw,  37  Wis.  655,  19  A.  R.  781.  See,  however,  Valley  R.  Co.  v.  Lake 
Erie  I.  Co.,  46  Ohio  St.  44. 

257  Cent.  Trust  Co.  v.  Ohio  Cent.  R.  Co.,  23  Fed.  306;  Manchester  & 
L.  R.  Co.  v.  Concord  R.  Co.,  66  N.  H.  100,  49  A.  S.  R.  582;  Boyd  v. 
American  Carbon  Black  Co.,  182  Pa.  206;  Moore  v.  Swanton  Tan.  Co., 
60  Vt.  459. 

ass  Wilson's  Case,  L.  R.  12  Eq.  521;  American  Union  Tel.  Co.  v.  Union 
Pac.  R.  Co.,  1  McCrary,  188,  1  Fed.  745. 

259  Credit  Co.  v.  Howe  Mach.  Co.,  54  Conn.  357,  1  A.  S.  R.  123; 
Lucas  v.  White  Line  Trans.  Co.,  70  Iowa,  541,  59  A.  R.  449;  Monument 
Nat.  Bank  v.  Globe  Works,  101  Mass.  57,  3  A.  R.  322;  Auerbach  v.  Le 
Sueur  Mill  Co.,  28  Minn.  291,  41  A.  R.  285. 

200  Wood  v.  Corry  Water-Works  Co.,  44  Fed.  146;  Nat.  Bank  v. 
Young,  41  N.  J.  Eq.  531;  Wright  v.  Pipe  Line  Co.,  101  Pa,  204,  47  A. 
R.  701. 

26i  Kan.  Val.  Nat.  Bank  v.  Rowell,  2  Dill.  371,  Fed.  Cas.  No.  7,611; 
111.  Trust  &  Sav.  Bank  v.  Pac.  R.  Co.,  117  Cal.  332;  Hendee  v.  Pinkerton, 
14  Allen  (Mass.)  381;  Phila.  &  S.  R.  Co.  v.  Lewis,  33  Pa.  33,  75  A.  D. 
574. 


§   158a  ESTOPPEL  BY   CONTRACT.  549 

A  corporation  may  set  up  the  defense  of  ultra  vires  when  sued 
on  a  contract  entered  into  by  it  as  agent  for  an  undisclosed 
principal.282 

(c)  Intention  of  parties.  Whether  a  fact  is  settled  by  a  con- 
tract so  as  to  preclude  evidence  in  denial  of  it  is  a  question 
depending,  as  a  rule,  upon  the  intention  of  the  parties.263  An 
estoppel  does  not  arise  from  a  recital  in  a  simple  contract  un- 
less it  appears  that  it  is  of  the  essence  of  the  contract.264  An 
acknowledgment  of  the  receipt  of  money  or  property,  for  ex- 
ample, is  not  generally  construed  as  settling  the  actual  receipt 
of  it  so  as  to  preclude  evidence  to  the  contrary.265 

§  158.    Acts  done  under  contract — Possession. 

(a)  Grantor  and  grantee.    A  grantee  who  takes  possession 

262  Jemison  v.  Citizens'  Sav.  Bank,  122  N.  Y.  135,  19  A.  S.  K.  482. 
263Bigelow,  Estop.  (5th  Ed.)  460. 

264  See  Ferguson  v.  Millikin,  42  Mich.  441. 

265  Farrar  v.  Hutchinson,  9  Adol.  &  E.  641;   Tucker  v.  Baldwin,  13 
Conn.  136,  33  A.  D.  384;  Lapping  v.  Duffy,  65  Ind.  229;   Pitt  v.  Berk- 
shire Life  Ins.  Co.,  100  Mass.  500,  504;    Ensign  v.  Webster,  1  Johns. 
Cas.   (N.  Y.)   145,  1  A.  D.  108;   Megargel's  Adm'r  v.  Megargel,  105  Pa. 
475.     And  see  Van  Ness  v.  Hadsell,  54  Mich.  560;   Marco  v.  Fond  du 
Lac  County,  63  Wis.  212.     See,  however,  Teutonia  Life  Ins.  Co.  v.  An- 
derson, 77  111.  384. 

It  has  been  held  that  while  an  acknowledgment  of  receipt,  as  part 
of  the  contract  in  which  it  occurs,  may  not  be  contradicted  for  the  pur- 
pose of  defeating  the  operation  of  the  contract,  yet  it  may,  as  a  simple 
receipt,  be  contradicted  for  collateral  purposes,  such  as,  for  example, 
the  purpose  of  recovering  the  money  receipted  for.  Bigelow,  Estop. 
(5th  Ed.)  471,  note  2. 

The  party  making  the  acknowledgment  may  be  estopped  in  pais, 
by  extraneous  circumstances,  to  deny  the  receipt  as  against  third 
persons  who  have  acted  on  it  to  their  detriment.  Bickerton  v.  Walker, 
31  Ch.  Div.  151;  McNeil  v.  Hill,  Woolw.  96,  Fed.  Cas.  No.  8,914; 
Armour  v.  Mich.  Cent.  R.  Co.,  65  N.  Y.  Ill,  22  A.  R.  603;  Hale  v.  Mil. 
Dock  Co.,  29  Wis.  482,  9  A.  R.  603.  And  an  estoppel  in  pais  may  arise 
from  extraneous  circumstances,  even  as  between  the  parties  to  the 
acknowledgment.  Dresbach  v.  Minnis,  45  Cal  223;  Staples  v.  Fill- 


550  LAW   OF   EVIDENCE.  §   158t> 

under  an  absolute  conveyance  is  not  therefore  estopped  to 
deny  his  grantor's  title.266  While  in  peaceable  possession  un- 
der the  deed,  however,  he  cannot  dispute  his  grantor 's  title  for 
the  purpose  of  avoiding  payment  of  the  purchase  money.287 

(b)  Vendor  and  purchaser.  A  purchaser  of  land  in  peace- 
able possession  under  a  contract  of  purchase  is  ordinarily  es- 
topped to  deny  his  vendor's  title.268  If,  however,  at  the  time 

more,  43  Conn.  510;  Dewey  v.  Fields,  4  Mete.  (Mass.)  381,  38  A.  D.  376; 
Dezell  v.  Odell,  3  Hill  (N.  Y.)  215,  38  A.  D.  628;  Bell  v.  Schafer,  5& 
Wis.  223. 

Effect  of  acknowledgment  of  receipt  of  consideration  for  deed,  see 
page  527,  supra. 

aeeBybee  v.  Or.  &  Cal.  R.  Co.,  139  U.  S.  663;  San  Francisco  v.  Law- 
ton,  18  Cal.  465,  79  A.  D.  187;  Cobb  v.  Oldfield,  151  111.  540,  42  A.  S.  R. 
263;  Whitmire  v.  Wright,  22  S.  C.  446,  53  A.  R.  724. 

The  grantee  cannot  deny  his  grantor's  title,  however,  for  the  purpose 
of  defeating  a  recovery  by  the  latter  upon  the  grantee's  breach  of 
condition  subsequent.  O'Brien  v.  Wetherell,  14  Kan.  616. 

A  mortgagor  is  estopped  from  denying  the  mortgagee's  title.  Farris 
v.  Houston,  74  Ala.  162.  See,  however,  Bush  v.  White,  85  Mo.  339. 

A  trustee  is  estopped  to  set  up  a  title  adverse  to  the  trust.  Willison 
v.  Watkins,  3  Pet.  (U.  S.)  43,  48;  Benjamin  v.  Gill,  45  Ga.  110; 
Dawson  v.  Mayall,  45  Minn.  408.  The  same  rule  applies  against 
executors  and  administrators.  Irly  v.  Kitchell,  42  Ala.  438;  Smith  v. 
Button,  74  Ga.  528;  White  v.  Swain,  3  Pick.  (Mass.)  365.  It  applies, 
also,  against  guardians.  Burke  v.  Turner,  90  N.  C.  588. 

Privity  between  grantor  and  grantee,  see  §  153 (b),  supra. 

267  Robertson  v.  Pickrell,  109  U.  S.  608,  615;   Strong  v.  Waddell,  56 
Ala.  471;  Bramble  v.  Beidler,  38  Ark.  200;  Marsh  v.  Thompson,  102  Ind. 
272;   Crumb  v.  Wright,  97  Mo.  13;    Smith  v.   Loaf  man,  145  Pa.  628; 
Spinning  v.  Drake,  4  Wash.  285. 

268  Lake  v.  Hancock,  38  Fla.  53,  56  A.  S.  R.  159;  Harle  v.  McCoy,  7 
J.  J.  Marsh.   (Ky.)   318,  23  A.  D.  407;   Towne  v.  Butterfield,  97  Mass. 
105;  Sayles  v.  Smith,  12  Wend.  (N.  Y.)  57,  27  A.  D.  117;  Lacy  v.  John- 
son, 58  Wis.  414.     See,  however,  Baker  v.  Hale,  6  Baxt.   (Tenn.)  46. 

If,  however,  the  vendor  parts  with  title  to  a  third  person,  and  then 
sues  for  the  land,  the  purchaser  may  show  this  in  defense.  Beall  v. 
Davenport,  48  Ga.  165,  15  A.  R.  656;  Dobson  v.  Culpepper,  23  Grat. 
(Va.)  352.  And  if  the  purchaser  has  surrendered  possession,  he  may 
then  dispute  the  vendor's  title.  Smith  v.  Babcock,  36  N.  Y.  167,  93  A. 
D.  498.  500. 


§   158C  ESTOPPEL  BY  CONTRACT.  551 

the  contract  was  made,  he  was  already  in  possession  under  a 
claim  of  title,  he  is  not  estopped  to  dispute  the  title  of  his 
vendor;289  and  he  may  buy  in  an  outstanding  title  and  assert 
it  against  the  vendor.270 

(c)  Landlord  and  tenant.  A  tenant  in  possession  under  a 
lease,  express  or  implied,  is  estopped  to  deny  his  landlord's  ti- 
tle.271 However,  the  tenant  is  not  estopped  to  show  that  the 
landlord's  title  has  expired  since  the  entry  was  made;272  and 
he  may  purchase  the  landlord's  title  and  assert  it  against  the 

260  Donahue  v.  Klassner,  22  Mich.  252;  Greene  v.  Couse,  127  N.  Y. 
386,  24  A.  S.  R.  458.  Contra,  McMath  v.  Teel,  64  Ga.  595;  Pershing  v. 
Canfleld,  70  Mo.  140. 

2To  Green  v.  Dietrich,  114  111.  636. 

271  Morton  v.  Woods,  L.  R.  3  Q.  B.  658;  Robertson  v.  Pickrell,  109  U. 
S.  608,  614;  Davis  v.  Williams,  130  Ala.  530,  89  A.  S.  R.  55,  and  ex- 
haustive note;  Burgess  v.  Rice,  74  Cal.  590;  Heisen  v.  Heisen,  145  111. 
658;  George  v.  Putney,  4  Cush.  (Mass.)  351,  50  A.  D.  788;  Nims  v. 
Sherman,  43  Mich.  45;  Winston  v.  Franklin  Academy,  28  Miss.  118,  61 
A.  D.  540;  Carson  v.  Broady,  56  Neb.  648,  71  A.  S.  R.  691;  Territt  v. 
Cowenhoven,  79  N.  Y.  400;  Alexander  v.  Gibbon,  118  N.  C.  796,  54  A. 
S.  R.  757. 

The  once-prevailing  rule  that  the  estoppel  rests  upon  the  existence 
of  a  sealed  lease  is  obsolete.  Enjoyment  of  the  land  by  permission 
is  the  foundation  of  the  estoppel.  Bigelow,  Estop.  506-512, 

The  estoppel  binds  the  tenant's  privies  also.  Doe  d.  Bullen  v.  Mills, 
2  Adol.  &  E.  17;  Barwick  v.  Thompson,  7  Term  R.  488;  Springs  v. 
Schenck,  99  N.  C.  551,  6  A.  S.  R.  552;  Stewart  v.  Roderick,  4  Watts  & 
S.  (Pa.)  188,  39  A.  D.  71.  Husband  and  wife  are  not  necessarily  In 
privity.  Shew  v.  Call,'  119  N.  C.  450,  56  A.  S.  R.  678. 

A  mere  licensee,  also,  is  estopped  to  deny  the  licensor's  title.  Doe  d. 
Johnson  v.  Baytup,  3  Adol.  &  E.  188;  Glynn  v.  George,  20  N.  H.  114; 
Wilson  v.  Maltby,  59  N.  Y.  126;  Dills  v.  Hampton,  92  N.  C.  565. 

As  to  whether  the  bare  taking  of  a  lease  of  land  of  which  the  lessee 
is  already  in  possession  estops  him  from  denying  the  lessor's  title, 
the  cases  are  in  conflict  Bigelow,  Estop.  (5th  Ed.)  527. 

2T2Hopcraft  v.  Keys,  9  Bing.  613;  Otis  v.  McMillan,  70  Ala.  46;  St 
John  v.  Quitzow,  72  111.  334;  Ryder  v.  Mansell,  66  Me.  167;  Presstman  v. 
Sill  jacks,  52  Md.  647;  Emmes  v.  Feeley,  132  Mass.  346. 


552  LAW   OF  EVIDENCE. 

latter.273  Again,  the  tenant  may,  on  the  expiration  of  his  lease, 
surrender  possession,  and  then  recover  it  back  on  a  paramount 
title  ;274  and  if  the  tenant  disclaims  to  hold  under  the  landlord, 
to  the  latter 's  knowledge,  his  tenancy  becomes  adverse,  and  if 
the  landlord  fails  to  eject  him  within  the  period  prescribed  by 
law  for  the  bringing  of  an  action  to  recover  real  property,  the 
tenant  may  thereafter  assert  the  title  so  acquired  by  him.275 

(d)  Bailor  and  bailee.  A  bailee  who  takes  possession  as 
such  is  estopped  to  deny  the  bailor's  title.276 

ART.  V.     ESTOPPEL   BY  MISREPRESENTATION. 

Preliminary  considerations,  §  159. 

(a)  Rule  of  estoppel. 

(b)  Pleading — Province  of  court  and  jury. 

(c)  Estoppel  to  assert  illegality. 

(d)  Land  titles — Statute  of  frauds. 

(e)  Who  may  be  estopped. 
Requisites  of  estoppel,  §  160. 

(a)  Existence  of  misrepresentation. 

(b)  Misrepresentation  of  third  person. 

(c)  Indirect  misrepresentation. 

(d)  Misrepresentation  of  opinion  and  intention. 

(e)  Fraudulent  intent. 

(f)  Carelessness. 

273Tilghman  v.  Little,  13  111.  239;  Nellis  v.  Lathrop,  22  Wend.  (N.  Y.) 
121,  34  A.  D.  285. 

He  may  also  purchase  a  paramount  title  under  which  the  landlord 
claims,  and  assert  it  against  the  latter.  Ford  v.  Ager,  2  Hurl.  &  C. 
279. 

27*Utica  Bank  v.  Mersereau,  3  Barb.  Ch.  (N.  Y.)  528,  49  A.  D.  189. 

275  willison  v.  Watkins,  3  Pet.  (U.  S.)  43;  Sherman  v.  Champlain 
Transp.  Co.,  31  Vt.  162. 

are  Qsgood  v.  Nichols,  5  Gray  (Mass.)  420;  Sinclair  v.  Murphy,  14 
Mich.  392;  Pulliam  v.  Burlingame,  81  Mo.  Ill,  51  A.  R.  229.  See,  how- 
ever, Biddle  v.  Bond,  34  L.  J.  Q.  B.  137;  The  Idaho,  93  U.  S.  575. 

Warehouseman.     Stonard  v.  Dunkin,  2  Camp.  344. 

Bank.  Seneca  County  v.  Allen.  99  N.  Y.  532;  First  Nat.  Bank  v. 
Mason,  95  Pa.  113,  40  A.  R.  632. 


§   159a  ESTOPPEL    BY    MISREPRESENTATION.  553 

(g)   Change  of  position — Reliance  on  misrepresentation — Injury, 
(h)  Ground  for  anticipating  change  of  position. 

§  159.    Preliminary  considerations. 

(a)  Rule  of  estoppel.  If  a  man,  by  word  or  conduct,  in- 
duces another  to  believe  in  the  existence  of  a  certain  fact,  and 
the  other,  in  reliance  thereon,  changes  his  position  to  his  prej- 
udice, the  former  is  ordinarily  estopped,  as  against  the  latter, 
to  assert  that  the  fact  does  not  exist.277  The  doctrine  rests 
upon  the  inequity  of  permitting  one  to  allege  the  nonexistence 

277  ENGLAND:     Skyring  v.  Greenwood,  4  Barn.  &  C.  289. 

ARKANSAS:     Graham  v.  Thompson,  55  Ark.  296,  29  A.  S.  R.  40. 

FLORIDA:     Terrell  v.  Weymouth,  32  Fla.  255,  37  A.  S.  R.  94. 

GEORGIA:     Ga.  Pac.  R.  Co.  v.  Strickland,  80  Ga.  776,  12  A.  S.  R.  282. 

ILLINOIS:  Robinson  Bank  v.  Miller,  153  111.  244,  46  A.  S.  R.  883;  In- 
ternational Bank  v.  Bowen,  80  111.  541. 

INDIANA:     Musselman  v.  McElhenny,  23  Ind.  4,  85  A.  D.  445. 

IOWA:  Holman  v.  Omaha  &  C.  B.  R.  &  B.  Co.,  117  Iowa,  268,  94  A. 
S.  R.  293. 

KANSAS:  Hutchinson  &  S.  R.  Co.  v.  Com'rs,  48  Kan.  70,  30  A.  S. 
R.  273;  Stewart  v.  Wyandotte  County  Com'rs,  45  Kan.  708,  23  A.  S.  R. 
746. 

LOUISIANA:     Choppin  v.  Dauphin,  48  La.  Ann.  1217,  55  A.  S.  R.  313. 

MAINE:     Casco  Bank  v.  Keene,  53  Me.  103. 

MASSACHUSETTS:     Baker  v.  Seavey,  163  Mass.  522,  47  A.  S.  R.  475. 

MICHIGAN:  Button  v.  Beckwith,  68' Mich.  303,  13  A.  S.  R.  344;  Robb 
v.  Shephard,  50  Mich.  189. 

MINNESOTA:  Moffett  v.  Parker,  71  Minn.  139,  70  A.  S.  R.  319;  Man- 
kato  v.  Willard,  13  Minn.  1,  97  A.  D.  208. 

NEW  YORK:  Piper  v.'  Hoard,  107  N.  Y.  73,  1  A.  S.  R.  789;  Continental 
Nat.  Bank  v.  Nat.  Bank,  50  N.  Y.  576. 

NORTH  CAROLINA:     Humphreys  v.  Finch,  97  N.  C.  303,  2  A.  S.  R.  293. 

PENNSYLVANIA:  Redmond  v.  Excelsior  S.  F.  &  L.  Ass'n,  194  Pa.  643, 
75  A.  S.  R.  714;  Green's  Appeal,  97  Pa.  342. 

SOUTH  CAROLINA:  Simmons  Hardw.  Co.  v.  Greenwood  Bank,  41  S.  C. 
177,  44  A.  S.  R.  700. 

VIRGINIA:  Fidelity  Ins.,  T.  &  S.  D.  Co.  v.  Shenandoah  Valley  R.  Co., 
86  Va.  1.  19  A.  S.  R.  858. 

WISCONSIN:  Weisbrod  v.  Chicago  &  N.  W.  R.  Co.,  18  Wis.  35,  86  A. 
D.  743.  See,  generally,  7  Current  Law,  1492. 


554  LAW   OF  EVIDENCE.  §   15QC 

of  facts  in  whose  existence  he  has,  by  his  own  word  or  conduct, 
induced  another  to  believe  to  his  prejudice.278 

The  principle  of  estoppel  by  misrepresentation  is  sometimes- 
spoken  of  as  a  rule  of  evidence,279  but  it  is  not  such.  It  is  a 
rule  of  substantive  law  which  precludes  the  person  estopped 
from  taking  advantage  of  the  nonexistence  of  facts  in  whose 
existence  he  has  caused  another  to  believe.  Evidence  of  those 
facts  is  excluded  solely  because  they  are  legally  immaterial. 
Whether  or  not  they  exist,  the  rights  of  the  parties  are  the 
same. 

(b)  Pleading — Province  of  court  and  jury.    An  estoppel  by 
misrepresentation,  when  relied  on  as  a  cause  of  action  or  ground 
of  defense,  must  be  pleaded.280 

The  question  whether  the  facts  exist  which  are  relied  on  as 
creating  an  estoppel  is  for  the  jury,281  but  the  question  whether 
the  facts  admitted  or  proved  give  rise  to  an  estoppel  is  for  the 
court.282 

(c)  Estoppel  to  assert  illegality.     Ordinarily,  as  between  the 
parties,  an  illegal  contract  cannot  become  enforceable  on  the 
principle  of  estoppel.283    A  person  may,  however,  be  estopped 

278Gillett  v.  Wiley,  126  111.  310,  9  A.  S.  R.  587;  Cook  v.  Walling,  117 
Ind.  9,  10  A.  S.  R.  17;  Hubbard  v.  Shepard,  117  Mich.  25,  72  A.  S.  R. 
548. 

279  LOW  v.  Bouverie  [1891]   3  Ch.  101,  60  Law  J.  Ch.  594;   Langdon 
v.  Doud,  10  Allen   (Mass.)   433,  435;   Gaston  v.  Brandenburg,  42  S.  C. 
348. 

280  De  Votie  v.  McGerr,  15  Colo.  467,  22  A.  S.  R.  426;   State  v.  East 
Fifth  St.  R.  Co.,  140  Mo.  539,  62  A.  S.  R.  742;  Cockrill  v.  Hutchinson, 
135  Mo.  67,  58  A.  S.  R.  564.     And  see  Nickum  v.  Burckhardt,  SO  Or.  464, 
60  A.  S.  R.  822. 

In  some  states  it  must  be  pleaded  in  equity,  but  need  not  be  at  law. 
Dean  v.  Crall,  98  Mich.  591,  39  A.  S.  R.  571.  See,  also,  7  Current  Law, 
1507. 

281  Gaylord  v.  Neb.  S.  &  E.  Bank,  54  Neb.  104,  69  A.  S.  R.  705. 

282  Wachter  v.  Phoenix  Assur.  Co.,  132  Pa.  128,  19  A.  S.  R.  600. 
283Durkee  v.  People,  155  111.  354,  46  A.  S.  R.  340;   Lynch  v.  Rosen- 
thai,  144  Ind.  86,  55  A.  S.  R.  168. 


§   159e  ESTOPPEL   BY    MISREPRESENTATION.  555 

by  misrepresentation  from  asserting  illegality  of  consideration 
as  a  defense  to  a  note  or  security  in  the  hands  of  a  bona  fide 
purchaser.284 

(d)  Land  titles — Statute  of  frauds.    At  law,  in  some  statesr 
a  parol  estoppel  cannot  divest  one  of  the  title  to  land.     The 
person  asserting  it  must  resort  to   equity.285    However,  the 
statute  of  frauds  does  not  prevent  the  acquisition  of  a  right, 
title,  or  interest  in  lands  by  estoppel.288 

(e)  Who  may  be  estopped.    The  state  may  not  be  estopped 
by  unauthorized  misrepresentation,  express  or  implied,  of  its 
officers.     The  doctrine  of  estoppel  does  not  apply  against  the 
sovereign.287 

The  doctrine  of  estoppel  cannot  ordinarily  be  invoked  to  de- 
feat a  municipal  corporation  in  the  prosecution  of  its  public 
affairs  because  of  an  error  or  mistake  of  one  of  its  agents  or 
officers  which  has  been  relied  upon  by  a  third  person  to  his 
detriment.  The  corporation  is  estopped,  as  a  rule,  only  when 
it  acts  in  its  private,  as  distinguished  from  its  public  or  gov- 
ernmental, capacity.288 

284pritchett  v.  Aherns,  26  Ind.  App.  56,  84  A.  S.  R.  274;  Weyh  v. 
Boy  Ian,  85  N.  Y.  394,  39  A.  R.  669;  Holman  v.  Boyce,  65  Vt.  318,  36  A. 
S.  R.  861. 

285  Smith  v.  Mundy,  18  Ala.  182,  52  A.  D.  221;  Doe  d.  McPherson  v. 
Walters,  16  Ala.  714,  50  A.  D.  200;  Mills  v.  Graves,  38  111.  455,  87  A. 
D.  315.  Contra,  Tracy  v.  Roberts,  88  Me.  310,  51  A.  S.  R.  394. 

286Hoene  v.  Pollak,  118  Ala.  617,  72  A.  S.  R.  189;  Ala.  G.  S.  R.  Co. 
v.  South  &  N.  A.  R.  Co.,  84  Ala.  570,  5  A.  S.  R.  401;  Cross  v.  Weare 
Com.  Co.,  153  111.  499,  46  A.  S.  R.  902;  Mattes  v.  Frankel,  157  N.  Y.  603, 
68  A.  S.  R.  804. 

287  pulaski  County  v.  State,  42  Ark.  118;  People  v.  Brown,  67  111.  435; 
Atty.  Gen.  v.  Marr,  55  Mich.  445.     Quaere,  Reid  v.  State,  74  Ind.  252. 
Contra,  State  v.  Ober,  34  La.  Ann.  359;  State  v.  Taylor,  28  La.  Ann.  460. 
And  see  Opinion  of  Sup.  Ct.,  49  Mo.  216;  Verdier  v.  Port  Royal  R.  Co., 
15   S.  C.  476,  483. 

288  Seeger  v.  Mueller,  133  111.  86;  County  Com'rs  v.  Nelson,  51  Minn. 
79,  38  A.  S.  R.  ,492;   State  v.  Murphy,  134  Mo.  548,  56  A.  S.  R.  51b; 


556  LAW    OF   EVIDENCE.  §   159e 

Private  corporations,  however,  are  ordinarily  bound  by  the 
principle  of  estoppel,  the  same  as  natural  persons.289  Thus, 
a  corporation  is  estopped  from  denying  that  its  agents  possess 
all  the  authority  which  it  gives  them  the  appearance  of  hav- 
ing.290 

Incident  to  the  enlarged  powers  of  married  women  to  deal 
with  others  is  the  capacity  to  be  bound  by  their  conduct  when 
the  doctrine  of  estoppel  is  necessary  for  the  protection  of  those 
who  deal  with  them.291  This  rule,  however,  is  subject  to  some 
limitations.292  When  the  wife  deals  in  respect  to  a  matter  con- 
cerning which  her  common-law  disabilities  have  been  removed, 
she  may  be  bound  by  estoppel  the  same  as  any  other  person; 
but  where  the  transaction  relates  to  a  matter  concerning  which 
her  common-law  disabilities  continue,  the  doctrine  of  estoppel 
cannot  be  invoked  to  remove  her  incapacity.293  In  some  juris- 
dictions, however,  she  may,  under  some  circumstances,  be  es- 
topped from  asserting  the  common-law  disability  of  coverture 
as  a  defense.294 

Phila.  M.  &  T.  Co.  v.  Omaha,  63  Neb.  280,  93  A.  S.  R.  442;  Chehalis 
County  v.  Hutcheson,  21  Wash.  82.  75  A.  S.  R.  818. 

289  Gunther  v.  New  Orleans  C.  E.  M.  A.  Ass'n,  40  La.  Ann.  776,  8  A. 
S.  R.  554.  See,  however,  §  157 (b),  supra. 

2»o  Hoene  v.  Pollak,  118  Ala.  617,  72  A.  S.  R.  189;  St.  Clair  v.  Rutledge, 
115  Wis.  583,  95  A.  S.  R.  964. 

291  Dobbin  v.  Cordiner,  41  Minn.  165,  16  A.  S.  R.  683;  Shivers  v.  Sim- 
mons, 54  Miss.  520,  28  A.  R.  372;   Crenshaw  v.  Julian,  26  S.  C.  283,  4 
A.  S.  R.  719;  Howell  v.  Hale,  5  Lea  (Tenn.)  405. 

292  Jackson  v.  Torrence,  83  Cal.  521;    Dobbin  v.  Cordiner,  41  Minn. 
165,  16  A.  S.  R.  683. 

293  Cook  v.  Walling,  117  Ind.  9,  10  A.  S.  R.  17;   Lowell  v.  Daniels,  2 
Gray   (Mass.)    161,  61  A.  D.  448;    Dukes  v.  Spangler,  35  Ohio  St.  119, 
127;  Innis  v.  Templeton,  95  Pa.  262,  40  A.  R.  643;   Stone  v.  Sledge,  87 
Tex.  49,  47  A.  S.  R.  65.     And  see  Williamson  v.  Jones,  43  W.  Va.  562, 
577,  64  A.  S.  R.  891,  905. 

Misrepresentations  made  after  she  becomes  discovert  may,  of  course, 
estop  her.  Logan  v.  Gardner,  136  Pa.  588,  20  A.  S.  R.  939. 

294  Patterson  v.  Lawrence,  90  111.  174,  32  A.  R.  22;   Long  v.  Crosson, 


§   160b  ESTOPPEL    BY    MISREPRESENTATION.  557 

§  160.    Requisites  of  estoppel. 

(a)  Existence  of  misrepresentation.     Misrepresentation,  as 
used  in  the  law  of  estoppel,  means  "a  false  impression  of  some 
fact  or  set  of  facts  created  upon  the  mind  of  one  person  by  an- 
other by  language,  or  by  language  and  conduct  together,  or 
by  conduct  alone  equivalent  to  language,  where  there  appears 
to  be  no  intention  to  warrant  the  same."295     As  the  term  im- 
plies, the  foundation  of  the  form  of  estoppel  considered  in  the 
present  article  is  a  misrepresentation,  express  or  implied.296 

The  misrepresentation  must  be  in  existence  at  the  time  the 
person  to  whom  it  was  made  acts  upon  it  to  his  prejudice.  If 
it  is  withdrawn  before  a  change  of  position,  there  is  no  estop- 
pel.297 

Ordinarily,  the  misrepresentation  must  be  the  free  and  in- 
telligent act  of  the  person  making  it,  else  he  is  not  bound. 
Misrepresentation  induced  by  fraud  or  mistake  does  not 
create  an  estoppel,298  in  the  absence  of  carelessness  on  his 
part.299 

(b)  Misrepresentation  of  third  person.    As  a  rule,  a  person 

119  Ind.  3,  4  L.  R.  A.  783;  Lane  v.  Schlemmer,  114  Ind.  296,  5  A.  S.  R. 
621;  Newman  v.  Moore,  94  Ky.  147,  42  A.  S.  R.  343;  Brown  v.  Thomson, 
31  S.  C.  436,  17  A.  S.  R.  40. 

295  Bigelow,  Estop.  (5th  Ed.)  556.  See,  generally,  7  Current  Law, 
1492. 

296Baxendale  v.  Bennett,  3  Q.  B.  Div.  525,  47  Law  J.  Q.  B.  624; 
Sandys  v.  Hodgson,  18  Adol.  &  E.  472,  8  Law  J.  Q.  B.  (N.  S.)  344; 
Gillett  v.  Wiley,  126  111.  310,  9  A.  S.  R.  587;  Blodgett  v.  Perry,  97  Mo. 
263,  10  A.  S.  R.  307;  N.  Y.  Rubber  Co.  v.  Rothery,  107  N.  Y.  310,  1  A.  S. 
R.  882;  Estis  v.  Jackson,  111  N.  C.  145,  32  A.  S.  R.  784;  Bynum  v. 
Preston,  69  Tex.  287,  5  A.  S.  R.  49. 

297  Freeman  v.  Cooke,  2  Exch.  654,  18  Law  J.  Exch.  114;  Sanitary 
Dist.  v.  Cook,  169  111.  184,  61  A.  S.  R.  161. 

298McCaskill  v.  Conn.  Sav.  Bank,  60  Conn.  300,  25  A.  S.  R.  323; 
Peters  B.  &  L.  Co.  v.  Lesh,  119  Ind.  98,  12  A.  S.  R.  367;  Hazell  v.  Tipton 
Bank,  95  Mo.  60,  6  A.  S.  R.  22;  Lyndonville  Nat.  Bank  v.  Fletcher,  68 
Vt.  81,  54  A.  S.  R.  874;  Shoufe  v.  Griffiths,  4  Wash.  161,  31  A.  S.  R.  910. 

2»9  See  §  160 (b),  infra. 


558  LAW   OF   EVIDENCE.  §    16Qb 

is  not  estopped  by  a  misrepresentation  which  he  did  not  either 
make  or  authorize.300  This  rule,  however,  is  subject  to  an  im- 
portant qualification.  A  man  may  be  estopped  by  another's 
unauthorized  misrepresentation  if,  in  breach  of  some  duty  to 
the  person  deceived,  he  has  supplied  the  person  making  the 
misrepresentation  with  that  which  was  necessary  to  make  it 
credible.301  Thus,  if  the  owner  of  property  transfers  it  to  a 
debtor  to  enable  him  to  get  credit,  he  invests  him  with  the  in- 
dicia of  ownership,  and  as  against  those  who,  in  reliance  there- 
on, give  the  debtor  credit,  the  true  owner  is  estopped  to  assert 
his  title.302  So,  if  a  man  stands  by  in  silence  and  allows  his 
property  to  be  sold  by  another  to  an  innocent  purchaser,  he  is 
estopped,  as  against  the  latter,  to  assert  his  title.303  And  one 

300  Swan  v.  North  British  A.  Co..  7  Hurl.  &  N.  657.  31  Law  J.  Exch. 
425;  Fox  v.  Clifton,  8  Law  J.  C.  P.  (0.  S.)  261;  First  Nat.  Bank  v. 
Cody,  93  Ga.  127;  St.  Louis,  A.  &  T.  H.  R.  Co.  v.  Belleville,  122  111.  376; 
Henry  v.  Sneed,  99  Mo.  407,  17  A.  S.  R.  580;  City  Nat.  Bank  v.  Kus- 
worm,  88  Wis.  188,  43  A.  S.  R.  880. 

If  he  authorizes  a  misrepresentation,  he  may  be  estopped  by  it. 
Marston  v.  Kennebec  M.  L.  Ins.  Co.,  89  Me.  266,  56  A.  S.  R.  412. 

sol  Ewart,  Estop.  20;  McKenzie  v.  British  Linen  Co.,  6  App.  Gas.  82; 
West  v.  Jones,  1  Sim.  (N.  S.)  205;  Ingham  v.  Primrose,  28  Law  J.  C. 
P.  294;  Metropolitan  L.  Ins.  Co.  v.  McCoy,  124  N.  Y.  47,  11  L.  R.  A. 
708. 

302  Tapp  v.  Lee,  3  Bos.  &  P.  367;  Corbett  v.  Brown,  8  Bing.  33;  Graham 
v.  Thompson,  55  Ark.  296,  29  A.  S.  R.  40;  Water's  Appeal,  35  Pa.  523, 
78  A.  D.  354. 

To  give  rise  to  the  estoppel  there  must  be  an  intent  to  deceive  cred- 
itors. Warner  v.  Watson,  35  Fla.  402;  Leete  v.  State  Bank,  115  Mo.  184; 
Trenton  Banking  Co.  v.  Duncan,  86  N.  Y.  221;  Kingman  v.  Graham, 
51  Wis.  232. 

303  pickard  v.  Sears,  6  Adol.  &  E.  469;   Lindsay  v.  Cooper,  94  Ala. 
170,  33  A.  S.  R.  105;  Ala.  G.  So.  R.  Co.  v.  South  &  North  Ala.  R.  Co., 
84  Ala.  570,  5  A.  S.  R.  401;  Terrell  v.  Weymouth,  32  Fla.  255,  37  A.  S. 
R.  94;  Cross  v.  Weare  Com.  Co.,  153  111.  499,  46  A.  S.  R.  902;  Blanchard 
v.  Allain,  5  La.  Ann.  367,  52  A.  D.  594;  Hafter  v.  Strange,  65  Miss.  323, 
7  A.  S.  R.  659;  Guffey  v.  O'Reiley,  88  Mo.  418,  57  A.  R.  424;  Stevenson 
v.  Saline  County,  65  Mo.  425;  Marines  v.  Goblet,  31  S.  C.  153,  17  A.  S.  R. 


§   160b  ESTOPPEL   BY    MISREPRESENTATION.  559 

who  sells  and  delivers  goods  with  the  knowledge  that  they 
are  to  be  put  on  sale  by  the  vendee  is  estopped,  as  against  an 
innocent  purchaser,  to  assert  that  the  sale  was  conditional,  and 
that  title  had  not  passed  to  the  vendee.304  He  is  not  thus 
estopped  by  the  unauthorized  misrepresentation  of  a  third 
person,  however,  unless  he  assists  in  the  misstateraent.805 

It  is  the  duty  of  a  person  to  exercise  an  appropriate  meas- 
ure of  prudence  to  avoid  causing  harm  to  others.  He  must 
not  omit  to  do  anything  which  a  reasonable  man,  guided  by 
those  considerations  which  ordinarily  regulate  the  conduct  of 
human  affairs,  would  do,  or  do  anything  which  a  prudent  and 
reasonable  man  would  not  do.306  To  constitute  an  estoppel 
there  must  be  a  breach  of  this  duty.807  To  create  an  estoppel 
by  silence,  for  instance,  there  must  be  not  only  the  opportunity, 
but  the  apparent  duty,  to  speak.308  "If,  in  breach  of  this 

22;  Wampol  v.  Kountz,  14  S.  D.  334,  86  A.  S.  R.  765;  Wilkins  v.  May,  3 
Head  (Tenn.)  173;  Henderson  v.  Overton,  2  Yerg.  (Tenn.)  394,  24  A. 
D.  492;  Lewis  v.  Lichty,  3  Wash.  213,  28  A.  S.  R.  25. 

To  create  the  estoppel,  the  owner  need  not  be  actually  present  at  the 
sale.  Anderson  v.  Hubble,  93  Ind.  573,  47  A.  R.  394. 

so4Lewenberg  v.  Hayes,  91  Me.  104,  64  A.  S.  R.  215;  Eisenberg  v. 
Nichols,  22  Wash.  70,  79  A.  S.  R.  917.  See,  however,  Zuchtmann  v. 
Roberts,  109  Mass.  53,  12  A.  R.  663. 

SOB  Marschall  v.  Aiken,  170  Mass.  3. 

soe  Ewart,  Estop.  30. 

aoTRamsden  v.  Dyson,  L.  R.  1  H.  L.  140;  Bank  of  Ireland  v.  Evans' 
Charities,  5  H.  L.  Gas..  389;  Mangles  v.  Dixon,  3  H.  L.  Cas.  702;  Clark 
v.  Eckroyd,  12  Ont.  App.  425;  Leather  Mfrs.  Bank  v.  Morgan,  117  U. 
S.  96;  Janin  v.  London  &  S.  F.  Bank,  92  Cal.  14,  27  A.  S.  R.  82; 
Oliver  Ditson  Co.  v.  Bates,  181  Mass.  455,  92  A.  S.  R.  424;  Scollans  v. 
Rollins,  173  Mass.  275,  73  A.  S.  R.  284;  O'Herron  v.  Gray,  168  Mass. 
573,  60  A.  S.  R.  411;  Knox  v.  Eden  Musee  Am.  Co.,  148  N.  Y.  S.  441,  51 
A.  S.  R.  700;  Gjerstadengen  v.  Hartzell,  9  N.  D.  268,  81  A.  S.  R.  575; 
Robb  v.  Pa.  Co.,  186  Pa.  456,  65  A.  S.  R.  868;  Tanney  v.  Tanney,  159  Pa. 
277,  39  A.  S.  R.  678;  Miller  Piano  Co.  v.  Parker,  155  Pa.  208,  35  A.  S.  R. 
873. 

sos  Polak  v.  Everett,  1  Q.  B.  Div.  673,  45  Law  J.  Q.  B.  369 ;  Lower  Latham 
Ditch  Co.  v.  Louden  Irr.  C.  Co.,  27  Colo.  267,  83  A.  S.  R.  80;  Green  v. 


560  LAW   OF   EVIDENCE.  §    I60b 

duty,  one  person  has  assisted  the  misrepresentation  of  another, 
— supplied  that  which  has  made  it  credible, — he  ought  to  be 
estopped,  as  against  the  person  to  whom  the  harm  has  been 
caused,"  from  denying  ,the  truth  of  the  misrepresentation.309 
This  rule  is  expressed  in  the  principle  "that  wherever  one  of 
two  innocent  persons  must  suffer  by  the  acts  of  a  third,  he 
who  enables  such  third  person  to  occasion  the  loss  must  sus- 
tain it."310  If,  for  example,  the  drawer  of  a  check  leaves 
spaces  in  it  which  may  easily  be  filled  in  by  the  holder  so  as 
to  increase  the  amount  without  rendering  the  paper  suspicious 
in  appearance,  the  drawer  is  estopped,  as  against  a  bona  fide 
transferee  of  the  check,  to  assert  nonliability  for  the  amount 
so  inserted.311  In  some  jurisdictions  this  rule  applies  only  to 
checks,  and  not  to  bills  of  exchange.312  In  the  United  States, 

Hedenberg,  159  111.  489,  50  A.  S.  R.  178;  Morrison  v.  Caldwell,  5  T.  B, 
Mon.  (Ky.)  426,  17  A.  D.  84;  Stewart  v.  Matheny,  66  Miss.  21,  14  A.  S. 
R.  538;  Allen  v.  Shaw,  61  N.  H.  95;  Chapman  v.  Rochester,  110  N.  Y. 
273,  6  A.  S.  R.  366;  N.  Y.  Rubber  Co.  v.  Rothery,  107  N.  Y.  310,  1  A. 
S.  R.  822;  Hunt  v.  Reilly,  24  R.  I.  68,  59  L.  R.  A.  206;  Williamson  v. 
Jones,  43  W.  Va.  562,  64  A.  S.  R.  891;  Priewe  v.  Wis.  S.  L.  &  I.  Co.,  103 
Wis.  537,  74  A.  S.  R.  904. 

309  Ewart,  Estop.  37;  Scarf  v.  Jardine,  7  App.  Gas.  357;  McKenzie 
v.  British  Linen  Co.,  6  App.  Gas.  82;  Holton  v.  Sanson,  11  U.  C.  C.  P. 
606;  Telegraph  Co.  v.  Davenport,  97  U.  S.  369;  First  Nat.  Bank  v.  Allen, 
100  Ala.  476,  46  A.  S.  R.  80;  Graham  v.  Thompson,  55  Ark.  296,  29  A.  S. 
R.  40;  Fannoner  v.  King,  49  Ark.  299,  4  A.  S.  R.  49;  Hill  v.  Wand,  47 
Ark.  340,  27  A.  S.  R.  288;  Bastrup  v.  Prendergast,  179  111.  553,  70  A.  S. 
R.  128;  Moore  v.  Moore,  112  Ind.  149,  2  A.  S.  R.  170;  Armour  v.  Mich. 
Cent.  R.  Co.,  65  N.  Y.  Ill,  122,  22  A.  R.  603 ;  Velsian  v.  Lewis,  15  Or.  539, 
3  A.  S.  R.  184. 

sio  Ewart,  Estop.  177;  Lickbarrow  v.  Mason,  2  Term  R.  63,  1  H.  Bl. 
357,  6  East,  21;  Turner  v.  Flinn,  72  Ala.  532;  State  Nat.  Bank  v.  Flath- 
ers,  45  La  Ann.  75,  40  A.  S.  R.  216. 

311  Young  v.  Grote,  4  Bing.  253,  5  Law  J.  C.  P.  (O.  S.)  165,  12  Moore, 
484! 

312  Scholfield  v.  Londesborough   [1894]   2  Q.  B.  660,  63  Law  J.  Q.  B. 
649,  [1895]  1  Q.  B.  536,  64  Law  J.  Q.  B.  293,  [1896]  App.  Cas.  514,  65 
Law  J.  Q.  B.  593;  Bank  of  Hamilton  v.  Imperial  Bank,  31  Ont.  100. 


§   160c  ESTOPPEL   BY    MISREPRESENTATION.  551 

by  the  better  opinion,  it  is  the  rule  that  where  the  maker  of 
a  negotiable  instrument  of  any  sort  has  himself,  by  careless 
execution  of  the  instrument,  left  room  for  any  alteration  to 
be  made,  either  by  insertion,  erasure,  or  clipping,  without  ap- 
parent defacement,  he  is  estopped,  as  against  a  bona  fide  hold- 
er, to  deny  the  liability  on  the  instrument  as  altered.313 

(c)  Indirect  misrepresentation.  A  misrepresentation  cannot 
found  an  estoppel  unless  it  was  made  directly  or  indirectly 
to  the  person  injured.314  A  misrepresentation  made  to  another 
indirectly  through  the  medium  of  a  third  person  may  found  an 
estoppel,  where  it"  was  intended  to  be  acted  on  by  others  than 
the  one  to  whom  it  was  directly  made.315  In  this  case,  to 
create  the  estoppel,  the  misrepresentation  need  not  have  been 
intended  to  be  acted  upon  by  some  one  person  in  particular. 
It  is  enough  that  a  certain  class  of  persons,  of  whom  the  per- 

aisYocum  v.  Smith.  63  111.  321,  14  A.  R.  120;  Lowden  v.  Schoharie 
County  Nat.  Bank,  38  Kan.  533;  Blakey  v.  Johnson,  13  Bush  (Ky.)  197, 
26  A.  R.  254;  Isnard  v.  Torres,  10  La.  Ann.  103;  Putnam  v.  Sullivan,  4 
Mass.  45,  3  A.  D.  206;  Weidman  v.  Symes,  120  Mich.  657;  Goodman  v. 
Eastman,  4  N.  H.  455;  Van  Duzer  v.  Howe,  21  N.  Y.  531;  Leas  v.  Walls, 
101  Pa.  57,  47  A.  R.  699;  Brown  v.  Reed,  79  Pa.  370,  21  A.  R.  75;  Zim- 
merman v.  Rote,  75  Pa.  188.  Contra,  Columbia  v.  Cornell,  130  U.  S. 
6o5;  Fordyce  v.  Kosminski,  49  Ark.  40,  4  A.  S.  R.  18;  Walsh  v.  Hunt, 
120  Cal.  46;  Harvey  v.  Smith,  55  111.  224;  Cochran  v.  Nebeker,  48  Ind. 
459;  Knoxville  Nat.  Bank  v.  Clarke,  51  Iowa,  264,  33  A.  R.  129;  Burrows 
v.  Klunk,  70  Md.  451,  14  A.  S.  R.  371;  Greenfield  Sav.  Bank  v.  Stowell, 
123  Mass.  196,  25  A.  R.  6.7;  Holmes  v.  Trumper,  22  Mich.  427,  7  A.  R.  661; 
Simmons  v.  Atkinson,  69  Miss.  862;  Benedict  v.  Cowden,  49  N.  Y.  396, 
10  A.  R.  382;  Searles  v.  Seipp,  6  S.  D.  472. 

si4  Jorden  v.  Money,  5  H.  L.  Gas.  212,  23  Law  J.  Ch.  865;  Le  Lievre  v. 
Gould  [1893]  1  Q.  B.  491,  62  Law  J.  Q.  B.  353;  Kinney  v.  Whiton,  44 
Conn.  262,  26  A.  R.  462;  Mills  v.  Graves,  38  111.  455,  87  A.  D.  315;  Simp- 
son v.  Pearson,  31  Ind.  1,  99  A.  D.  577;  Maguire  v.  Selden,  103  N.  Y. 
642;  Atkins  v.  Payne,  190  Pa.  5;  Holman  v.  Boyce,  65  Vt.  318,  36  A.  S. 
R.  861. 

sis  Gregg  v.  Wells,  10  Adol.  &  E.  90,  8  Law  J.  Q.  B.  (N.  S.)  193; 
Brown  v.  Sims,  22  Ind.  App.  317;  First  Nat.  Bank  v.  Marshall  &  I.  Bank, 
108  Mich.  114;  Stevens  v.  Ludlum,  46  Minn.  160,  24  A.  S.  R.  210. 

Hammon,  Ev. — 36. 


562  LAW    OF   EVIDENCE.  §   160e 

son  injured  is  one,  was  in  the  mind  of  the  person  making  the 
misrepresentation.316 

(d)  Misrepresentation  of  opinion  and  intention.    The  mis- 
representation must  be  of  some  fact  alleged  to  be  at  the  time 
existing,  as  distinguished  from  a  statement  of  opinion,317  or  a 
statement  of  intention  as  to  future  acts  or  a  promise.318     A 
statement  of  intention  as  to  future  acts  may  involve  a  repre- 
sentation of  fact,  however;  as  where  a  note  purporting  to  be 
signed  by  a  certain  person  is  shown  to  him  by  a  prospective 
purchaser  of  the  instrument,  and  he  expresses  an  intention  to 
pay  it  at  maturity.    In  this  case  the  expression  of  an  intention 
to  pay  constitutes  an  implied  representation  that  the  signature 
is  valid,  and  it  cannot  be  disputed  as  against  the  purchaser.319 

(e)  Fraudulent  intent.     A  representation  innocently  made 
may  found  an  estoppel.     An  intention  to  defraud  is  not  al- 
ways essential.320     If  a  misrepresentation  is  made  personally 

sic  in  re  Agra  &  M.  Bank,  2  Ch.  App.  391,  36  Law  J.  Ch.  222;  In  re. 
Bahia  &  S.  F.  R.  Co.,  L.  R.  3  Q.  B.  584,  37  Law  J.  Q.  B.  176;  Brown  v. 
Sims,  22  Ind.  App.  317;  Irish-American  Bank  v.  Ludlum,  49  Minn.  255; 
Stevens  v.  Ludlum,  46  Minn.  160,  24  A.  S.  R.  210;  Riggs  v.  Pursell,  74 
N.  Y.  370;  Armour  v.  Mich.  Cent.  R.  Co.,  65  N.  Y.  Ill,  122,  22  A.  R. 
603;  Loomis  v.  Lane,  29  Pa.  244,  72  A.  D.  625. 

SIT  Akin  v.  Kellogg,  119  N.  Y.  441. 

sis  Citizens'  Bank  v.  First  Nat.  Bank,  L.  R.  6  H.  L.  352,  43  Law  J. 
Ch.  269;  Jorden  v.  Money,  5  H.  L.  Gas.  185,  23  Law  J.  Ch.  865;  Mer- 
chants' Bank  v.  Lucas,  18  Can.  Sup.  Ct.  704;  McLain  v.  Buliner,  49  Ark. 
218,  4  A.  S.  R.  36;  Langdon  v.  Doud,  10  Allen  (Mass.)  433;  White  v. 
Ashton,  51  N.  Y.  280;  Elliot  v.  Whitmore,  23  Utah,  342,  90  A.  S.  R. 
700;  Rorer  Iron  Co.  v.  Trout,  83  Va.  397,  5  A.  S.  R.  285. 

319  Perry  v.  Lawless,  5  U.  C.  Q.  B.  514;  Preston  v.  Mann,  25  Conn.  118; 
Krathwohl  v.  Dawson,  140  Ind.  1. 

320  Jorden  v.  Money,  5  H.  L.  Gas.  212,  23  Law  J.  Ch.  865;   Snell  v. 
Ins.  Co.,  98  U.  S.  85;  Gillett  v.  Wiley,  126  111.  310,  9  A.  S.  R.  587;  An- 
derson v.  Hubble,  93  Ind.  570,  47  A.  R.  394,  399;   Wampol  v.  Kountz, 
14  S.  D.  334,  86  A.  S.  R.  765.     Contra,  McGee  v.  Kane,  14  Ont.  234;  Brant 
v.  Va.  C.  &  I.  Co.,  93  U.  S.  335;  Boggs  v.  Merced  Min.  Co.,  14  Cal.  367; 
Powell  v.  Rogers,  105   111.   322;    Zuchtmann  v.  Roberts,  109  Mass.  53, 


§   160e  ESTOPPEL   BY    MISREPRESENTATION.  553 

or  by  authority,  the  person  so  making  or  authorizing  it  is  es- 
topped, even  though  he  is  not  guilty  of  fraud.821  If  a  person, 
by  active  means,  gives  credibility  to  a  misrepresentation  made 
without  his  authority,  he  is  estopped,  notwithstanding  that  he 
is  innocent  of  fraud.322  Thus,  if  a  carrier  or  warehouseman 
issues  a  delivery  order  or  warehouse  receipt  or  bill  of  lading, 
and  a  third  person  advances  money  on  it  on  the  representation 
of  the  holder  that  he  owns  the  goods  described,  the  representa- 
tion being  given  credibility  by  the  holder's  possession  of  the 
document,  the  bailee  is  estopped  to  deny  that  it  holds  the 
goods,  or  that  the  holder  owns  them,  notwithstanding  the  ab- 
sence of  fraud  or  knowledge  of  the  misrepresentation.328  So, 
if  a  person,  even  though  innocently,  invests  another  lay  con- 
tract, whether  negotiable  or  otherwise,  with  the  legal  title  to 
chattels,  he  is  estopped  to  deny,  as  against  a  bona  fide  pur- 
chaser, that  the  person  so  clothed  had  title.324 

12  A.  R.  663;  Staton  v.  Bryant,  55  Miss.  261;  Stevens  v.  Dennett,  51 
N.  H.  324;  Brigham  Young  Trust  Co.  v.  Wagener,  12  Utah,  1;  Kingman 
v.  Graham,  51  Wis.  232. 

Fraud  may  be  sufficiently  shown  by  negligence  on  the  part  of  the 
person  making  the  misrepresentation.  Sullivan  v.  Colby,  18  C.  C.  A. 
193,  71  Fed.  460;  Montgomery  v.  Keppel,  75  Cal.  128,  7  A.  S.  R.  125. 
Contra,  Pitcher  v.  Dove,  99  Ind.  175,  178;  Stiff  v.  Ashton,  155  Mass.  130; 
Brookhaven  v.  Smith,  118  N.  Y.  640;  Moore  v.  Brownfield,  10  Wash. 
439. 

sal  West  v.  Jones,  1  Sim.  (N.  S.)  207,  20  Law  J.  Ch.  362;  Wright  v. 
Snowe,  2  De  Gex  &  S.'  321;  Saderquist  v.  Ontario  Bank,  14  Ont.  586; 
Stevens  v.  Ludlum,  46  Minn.  160,  24  A.  S.  R.  210;  Horn  v.  Cole,  51  N.  H. 
287,  12  A.  R.  Ill;  Blair  v.  Wait,  69  N.  Y.  113.  See,  however,  Smith  v. 
Sprague,  119  Mich.  148.  75  A.  S.  R.  384. 

322Bickerton  v.  Walker,  31  Ch.  Div.  151,  55  Law  J.  Ch.  227;  Shaw 
v.  Port  Philip  &  C.  G.  Min.  Co.,  13  Q.  B.  Div.  103,  53  Law  J.  Q.  B.  369. 

323  Coventry  v.  Great  Eastern  R.  Co.,  11  Q.  B.  Div.  776,  52  Law  J.  Q. 
B.  694;  Holton  v.  Sanson,  11  U.  C.  C.  P.  606;  Armour  v.  Mich.  Cent.  R. 
Co.,  65  N.  Y.  Ill,  122.     See,  however,  Second  Nat.  Bank  v.  Walbridge, 
19  Ohio  St.  419.  2  A.  R.  408. 

324  Moore  v.  Moore,  112  Ind.  152,  2  A.  S.  R.  170;  Root  v.  French,  13 
Wend.  (N.  Y.)  570,  28  A.  D.  482. 


564  LAW    OF   EVIDENCE.  §    160f 

The  only  form  of  estoppel  into  which  fraud  necessarily  en- 
ters is  that  arising  where  a  misrepresentation  made  without 
authority  is  given  credibility  by  another,  not  by  active  means, 
but  only  passively,  as  where  one  stands  by  and,  without  as- 
serting his  rights,  knowingly  suffers  another  to  alter  his  posi- 
tion in  ignorance  of  those  rights.323  In  such  cases  the  person 
thus  standing  by  in  silence  must  have  had  actual  or  virtual 
knowledge  of  the  other's  error,  else  he  is  not  estopped.326 

(f)  Carelessness.  Carelessness,  accompanied  by  misrepre- 
sentation, sometimes  gives  rise  to  an  estoppel.327  In  case  the 
misrepresentation  is  made  personally  or  by  authority,  careless- 
ness is  not  a  necessary  element  of  estoppel.  Whether  or  not 
it  exists,  the  estoppel  may  arise.328  And  the  rule  is  the  same 
in  many  cases  of  assisted  misrepresentation,  i.  e.,  misrepresen- 
tation of  a  third  person  to  which  the  person  estopped  has 
given  credibility.329  In  some  classes  of  cases  where  the  mis- 
representation is  made  by  one  person,  and  the  carelessness  oc- 
curs on  the  part  of  another,  however,  the  latter  is  estopped.330 
Thus,  if  a  person,  through  carelessness,  allows  himself  to  be 
tricked  into  executing  a  document  which  he  did  not  intend  to 
execute,  he  is  estopped  from  asserting  the  fraud  as  against  one 
who  in  innocent  reliance  on  the  document  has  altered  his 

325  Ewart,  Estop.  88 ;  Pickard  v.  Sears,  6  Adol.  &  E.  469 ;  Ramsden  v. 
Dyson,  L.  R.  1  H.  L.  140;  Fleming  v.  Barden,  126  N.  C.  450,  127  N.  C. 
214,  53  L.  R.  A.  316;  Hill  v.  Epley,  31  Pa.  331,  334.  ' 

326  Mangles  v.  Dixon,  3  H.  L.  Cas.  702;  Proctor  v.  Bennis,  36  Ch.  Div. 
740,  57  Law  J.  Ch.  11. 

327  Weinstein  v.  Nat.  Bank,  69  Tex.  38,  5  A.  S.  R.  23. 

328  Burrowes  v.  Lock,  10  Ves.  470. 

329  in  re  Bahia  &  S.  F.  R.  Co.,  L.  R.  3  Q.  B.  584,  37  Law  J.  Q.  B.  176; 
Cornish  v.  Abington,  4  Hurl.  &  N.  556,  28  Law  J.  Exch.  262. 

330  McKenzie   v.   British  Linen   Co.,   6   App.   Cas.   82;    Cairncross  v. 
Lorimer,  3  Macq.  H.  L.  Cas.  827,  830;    Merchants'  Bank  v.  Lucas,  13 
Ont.  520,  15  Ont.  App.  573,  18  Can.  Sup.  Ct.  704;  Hardy  v.  Chesapeake 
Bank,  51  Md.  562,  34  A.  R.  325;  Thomson  v.  Shelton,  49  Neb.  644;  Greene 
v.  Smith.  57  Vt.  268. 


§   160g  ESTOPPEL   BY    MISREPRESENTATION.  555 

position.331  So,  if  a  mortgagee  carelessly  delivers  the  title 
deeds  to  the  mortgagor,  who  conveys  to  one  who,  in  reliance 
on  the  mortgagor's  possession  of  the  documents,  believes  the 
property  to  be  unincumbered,  the  mortgagee  is  estopped  to 
assert  his  lien.332 

(g)  Change  of  position — Reliance  on  misrepresentation — 
Injury.  To  give  rise  to  an  estoppel,  the  person  asserting  it 
must  have  changed  his  position  to  his  prejudice  in  reliance  on 
the  misrepresentation.333  It  is  not  enough  that  there  might 
have  been  a  change  of  position,  if  in  fact  there  was  not.334 
The  change  must  be  in  the  position  of  the  person  asserting  the 
estoppel,  else  the  person  making  the  misstatement  is  not 
bound.335  The  necessary  change  in  position  may  result  from 
an  omission  to  act  as  well  as  affirmative  action.336 

331  Ex  parte  Swan,  7  C.  B.  (N.  S.)  431,  30  Law  J.  C.  P.  113;  Blaisdell 
v.  Leach,  101  Cal.  405,  40  A.  S.  R.  65;  Charleston  v.  Ryan,  22  S.  C.  339, 
53  A.  R.  713. 

ssz  Thorpe  v.  Holdsworth,  L.  R.  7  Eq.  147,  38  Law  J.  Ch.  194;  Newman 
v.  Newman,  28  Ch.  Div.  674,  54  Law  J.  Ch.  598;  Clarke  v.  Palmer,  21 
Ch.  Div.  124,  51  Law  J.  Ch.  634. 

BBS  Miles  v.  Mcllwraith,  8  App.  Cas.  120,  52  Law  J.  P.  C.  17;  Ex  parte 
Adamson,  8  Ch.  Div.  817,  47  Law  J.  Bankr.  103;  Wheaton  v.  North 
British  &  M.  Ins.  Co.,  76  Cal.  415,  9  A.  S.  R.  216;  Tolman  v.  Smith,  74 
Cal.  345;  Davidson  v.  Jennings,  27  Colo.  187,  83  A.  S.  R.  49;  Mills  v. 
Graves,  38  111.  455,  87  A.  D.  315;  Thompson  v.  Thompson,  9  Ind.  323, 
68  A.  D.  638;  Nat.  Union  Bank  v.  Nat.  Mechanics'  Bank,  80  Md.  371,  45 
A.  S.  R.  350;  Klass  v.  Detroit,  129  Mich.  35,  95  A.  S.  R.  407;  De  Berry 
v.  Wheeler,  128  Mo.  84,  49  A.  S.  R.  538;  Blodgett  v.  Perry,  97  Mo.  263, 
10  A.  S.  R.  307;  Lingonner  v.  Ambler,  44  Neb.  316;  Rigney  v.  Rigney, 
127  N.  Y.  408,  24  A.  S.  R.  462;  N.  Y.  Rubber  Co.  v.  Rothery,  107  N.  Y. 
310,  1  A.  S.  R.  822;  Faison  v.  Grandy,  128  N.  C.  438,  83  A.  S.  R.  693; 
Bynum  v.  Preston,  69  Tex.  287,  5  A.  S.  R.  49;  Holman  v.  Boyce,  65  Vt. 
318,  36  A.  S.  R.  861;  Shakman  v.  U.  S.  Credit  System  Co.,  92  Wis.  366, 
53  A.  S.  R.  920. 

334  Davis  v.  Bank  of  England,  2  Bing.  393,  5  Barn.  &  C.  185. 

•ass  Heane  v.  Rogers,  9  Barn.  &  C.  577,  7  Law  J.  K.  B.  (O.  S.)  285. 

ss«  Gordon  v.  James,  30  Ch.  Div.  249;  Leather  Mfrs.  Bank  v.  Morgan, 
117  U.  S.  107;  Moyle  v.  Landers.  78  Cal.  99,  12  A.  S.  R.  22;  Continental 


566  LAW   OF   EVIDENCE.  §   160g 

Change  of  position  in  reliance  on  an  active  misrepresentation 
works  an  estoppel,  even  though  the  person  injured  had  means 
of  ascertaining  the  falsity  of  the  statement.337  This  is  es- 
pecially true  where,  because  of  the  misrepresentation  or  other 
means,  the  person  injured  neglected  to  make  investigation.338 
Where,  however,  the  misrepresentation  is  passive, — where  no 
active  means  are  taken  to  deceive, — then,  as  a  rule,  if  the 
person  injured  has  the  means  of  knowledge,  he  is  bound  to 
pursue  them.  The  other  party  is  not  estopped  under  these 
circumstances,339  unless,  perhaps,  he  had  reasonable  ground 
for  anticipating  some  change  in  the  other's  position.340 

The  change  in  position  must  ordinarily  have  occurred  upon 
the  faith  of  the  misrepresentation.341  If  the  person  injured 

Nat.  Bank  v.  Nat.  Bank,  50  N.  Y.  575;  Weinstein  v.  Nat.  Bank,  69  Tex. 
38,  5  A.  S.  R.  23. 

337  Bloomenthal  v.  Ford  [1897]  App.  Gas.  158,  66  Law  J.  Ch.  253; 
Willmott  v.  Barber,  15  Ch.  Div.  106,  49  Law  J.  Ch.  792;  Strand  v. 
Griffith,  97  Fed.  854;  Dodge  v.  Pope,  93  Ind.  480;  David  v.  Park,  103 
Mass.  501. 

sss  Graham  v.  Thompson,  55  Ark.  299,  29  A.  S.  R.  40;  Evans  v.  For- 
stall,  58  Miss.  30. 

339  Lower  Latham  Ditch  Co.  v.  Louden  Irr.  C.  Co.,  27  Colo.  267,  83 
A.  S.  R.  80;  Morgan  v.  Farrel,  58  Conn.  418,  18  A.  S.  R.  282;  Blodgett 
v.  Perry,  97  Mo.  263,  10  A.  S.  R.  307;  Clark  v.  Parsons,  69  N.  H.  147, 
76  A.  S.  R.  157;  Estis  v.  Jackson,  111  N.  C.  145,  32  A.  S.  R.  784; 
Fisher's  Ex'r  v.  Mossman,  11  Ohio  St.  42;  Bright  v.  Allan,  203  Pa.  394, 
93  A.  S.  R.  769;  Williamson  v.  Jones,  43  W.  Va.  562,  64  A.  S.  R.  891; 
Kingman  v.  Graham,  51  "Wis.  232. 

3*0  McLean  v.  Clark,  21  Ont.  683;  Markham  v.  O'Connor,  52  Ga.  183, 
21  A.  R.  249;  Two  Rivers  Mfg.  Co.  v.  Day,  102  Wis.  328. 

341  Simm  v.  Anglo-American  Tel.  Co.,  5  Q.  B.  Div.  188;  Graham  v. 
Thompson,  55  Ark.  296,  29  A.  S.  R.  40;  First  Nat.  Bank  v.  Maxwell, 
123  Cal.  360,  69  A.  S.  R.  64;  Hardy  v.  Chesapeake  Bank,  51  Md.  562,  34 
A.  R.  325;  Traders'  Nat.  Bank  v.  Rogers,  167  Mass.  315,  57  A.  S.  R.  458; 
Lincoln  v.  Gay,  164  Mass.  537,  49  A.  S.  R.  480;  Murphy  v.  Barnard,  162 
Mass.  72,  44  A.  S.  R.  340;  Clark  v.  Dillman,  108  Mich.  625;  Blodgett  v. 
Perry,  97  Mo.  263,  10  A.  S.  R.  307;  Frank  v.  Chemical  Nat.  Bank,  84 
N.  Y.  209,  38  A.  R.  501;  Gjerstadengen  v.  Hartzell,  9  N.  D.  268,  81  A.  S. 


§  160h  ESTOPPEL    BY    MISREPRESENTATION.  557 

had  no  knowledge  of  the  misrepresentation,842  or  if  he  had 
knowledge  of  its  falsity,343  or  if  he  did  not  believe  it,  and  made 
an  independent  investigation,344  there  is  no  estoppel. 

The  misrepresentation  need  not  have  been  the  sole  cause 
of  the  change  in  position.  The  estoppel  may  arise,  even  though 
other  causes  also  operated  to  work  the  change.345 

Injury  must  have  resulted  to  the  person  asserting  the  es- 
toppel, else  it  does  not  arise.346 

(h)  Ground  for  anticipating  change  of  position.  To  bind  A 
person  by  estoppel,  he  must  have  had  reasonable  ground  for 
anticipating  that  the  person  to  whom  the  misrepresentation 
vras  made  would  change  his  position  in  reliance  on  the  false 
statement.347  If  reasonable  ground  exists,  he  is  estopped,348  but 
not  otherwise.  Even  though  he  knows  that  his  representation 
is  false  or  misleading,  yet  if  he  has  no  reasonable  ground  for 
thinking  that  it  is  to  be  followed  by  action  on  the  part  of 
the  person  to  whom  it  is  made,  he  is  not  estopped.349  And  ev^en 

R.  575;  Burrows  v.  Grover  Irr.  Co.  (Tex.  Civ.  App.)  41  S.  W.  822; 
Prewe  v.  Wis.  S.  L.  &  I.  Co.,  103  Wis.  537,  74  A.  S.  R.  904. 

842  Starr  v.  Newman,  107  Ga.  395;  Saratoga  County  Bank  v.  Pruyn, 
90  N.  Y.  250;  Shoufe  v.  Griffiths,  4  Wash.  161,  31  A.  S.  R.  910. 

84sCooke  v.  Eshelby,  12  App.  Gas.  271,  56  Law  J.  Q.  B.  505;  Proctor 
v.  Bennis,  36  Ch.  Div.  740,  57  Law  J.  Ch.  11;  McLean  v.  Clark,  20  Ont. 
App.  660;  Graham  v.  Thompson,  55  Ark.  296,  29  A.  S.  R.  40;  Cooper 
v.  Great  Falls  Cotton  Co.,  94  Tenn.  588;  Brothers  v.  Kaukauna  Bank, 
84  Wis.  381,  36  A.  S.  R.  932. 

344  Small  v.  Attwood,  Younge,  407,  6  Clark  &  F.  232;   Royal  Ins.  Co. 
v.  Byers,  9  Ont.  120. 

345  Edgington  v.  Fitzmaurice,  29  Ch.  Div.  481,  55  Law  J.  Ch.  650. 
«46Hambleton  v.  Cent.  Ohio  R.  Co.,  44  Md.  551;   Corset  v.  Paul,  41 

N.  H.  24,  77  A.  D.  753;  Wright's  Appeal,  99  Pa.  425;  Weinstein  v.  Jeffer- 
son Nat.  Bank,  69  Tex.  bo,  5  A.  S.  R.  23. 

347  Wheaton  v.  North  British  &  M.  Ins.  Co.,  76  Cal.  415,  9  A.  S.  R.  216. 

848Freeny  v.  Hall,  93  Ga.  706;  Stevens  v.  Ludlum,  46  Minn.  160,  24 
A.  S.  R.  210;  Two  Rivers  Mfg.  Co.  v.  Day,  102  Wis.  328.  See,  however, 
Zuchtmann  v.  Roberts,  109  Mass.  53.  12  A.  R.  663. 

349  jorden  v.  Money,  5  H.  L.  Cas.  212,  23  Law  J.  Ch.  865;  Nichols  v. 


568  LAW    OF   EVIDENCE.  §   J60h 

though  he  is  aware  that  the  person  to  whom  the  misrepre- 
sentation is  made  contemplates  action,  yet  if  he  has  no  rea- 
sonable ground  for  thinking  that  that  person  is  taking  ac- 
tion on  the  faith  of  the  misrepresentation,  he  is  not  estop- 
ped.350 

Peck,  70  Conn.  439,  66  A.  S.  R.  122;  Tillotson  v.  Mitchell,  111  111.  518; 
Kirchman  v.  Standard  Coal  Co..  112  Iowa,  668,  52  L.  R.  A.  318;  Allum 
v.  Perry,  68  Me.  232;  Pierce  v.  Andrews,  6  Gush.  (Mass.)  4,  52  A.  D. 
748;  Clark  v.  Dillman,  108  Mich.  625;  First  Nat.  Bank  v.  Marshall  &  I. 
Bank,  108  Mich.  114;  Bright  v.  Allan,  203  Pa.  394,  93  A.  S.  R.  769; 
Kingman  v.  Graham,  51  Wis.  232.  See,  however,  Horn  v.  Cole,  51  N. 
H.  297,  12  A.  R.  111. 

350  De  Berry  v.  Wheeler,  128  Mo.  84,  49  A.  S.  R.  538. 


TABLE  OF  CASES 


[REFERENCES  ARE  TO  PAGES.] 


Abbott,  v.  Abbott,  124. 

v.    Godfrey's    Heirs,    310,    312, 
313,  314. 

v.  Omaha  S.  &  R.  Co.,  109,  111. 

v.  Stone,  24,  233. 

v.  Union  Mut.  L..  Ins.  Co.,  147. 
Abel  v.  Alexander,  424,  425. 
Abrams    v.    Pomeroy,    118,    119. 
Abrath  v.  North  E.  R.  Co.,  4,  12,  16, 

17,  18,  32,  41. 
Accolo  v.  Chicago  B.  &  Q.  R.  Co., 

431. 

Achey  v.  Stephens,  330. 
Achtenhagen    v.    Watertown,    278, 

282. 

Ackerman,  In  re,  526. 
Ackerson  v.  People,  203. 
Acorn,  The,  505. 
Acree,  Ex  parte,  23,  197. 
Adair    v.    Adair,    62,    307. 

v.  Brimmer,  223. 

v.  Egland,  134. 

v.  Mette,  239. 
Adams  v.  Blankenstein,  289. 

v.  Church,  511. 

v.  Clark,  148. 

v.  Conover,  496. 

v.  Cowles,  91,  101. 

T.  Gay,  228. 


v.  Main,  66,  166. 

v.  Ross,  537. 

v.  Slate,  62,  146,  149. 

v.  Thornton,  24. 

v.  Tiernan,   101. 

v.  Utley,  467. 

v.  Yazoo  &  M.  V.   R.  Co.,  491, 

509. 

Adams  Exp.  Co.  v.  Carnahan,  213, 
462. 

v.  Guthrie,  172,  177. 
Adams'  Ex'rs  v.  Jones'  Adm'r,  62, 

253,  260. 

Adams  Min.  Co.  v.  Senter,  405. 
Adamson,  Ex  parte,  565. 
Addison  v.  Crow,  533. 
Aderholdt  v.  Henry,  506. 
Adler  v.   State,  377,  430,  435,  445, 

453. 

Adoue  v.  Spencer,  16,  175,  340. 
Aetna  Ins.  Co.  v.  Johnson,  27. 

v.  Reed,  221. 

Agan  v.  Shannon,  94,  95. 
Agnew   v.   Adams,   487. 

v.  Johnson,  343. 

v.  Renwick,  306. 

v.  U.  S.,  12,  16,  47,  199. 
Agra  &  M.  Bank.  In  re,  562. 
Ahearne  v.  Hogan,  182. 
Ahlers  v.  Thomas,  500,  501. 
Ah  Men,  Ex  parte,  391. 


570 


TABLE  OF  CASES. 


[REFERENCES  ABE  TO  PAGES.] 


Aikin  v.  Smith,  348. 
Akin  v.  Kellogg,  562. 

v.  Peters,  316. 
Alabama   G.   L.    Ins.   Co.   v.    Cent. 

A.  &  M.  Ass'n,  113. 
Alabama  G.   S.  R.  Co.  v.  Carroll, 
226. 

v.  Frazier,  32,  35,  38,  41,  277. 

v.  Hill,  297. 

v.  South  &  N.  A.  R.  Co.,  555, 

558. 
Alabama      State      Land      Co.      v. 

Thompson,  133,  136. 
Alabama  &  V.  R.  Co.  v.  Beardsley, 
151. 

v.  Brooks,  208. 
Albany  v.  McNamara,  89. 
Albany  City  Sav.  Inst.  v.  Burdick, 

211. 
Albany  Furniture  Co.  v.  Merchants' 

Nat.  Bank,  463. 
Albert  Lea  v.  Nielson,  360. 
Albrittin  v.  Huntsville,  399. 
Albritton  v.  State,  156. 
Alcock  v.  Whatmore,  394. 
Alcorn  v.  Sadler,  354,  359. 
Alden  v.  Pearson,  290. 

v.  St.      Peter's      Parish,      109, 

436. 

Alderson  v.  Bell,  394. 
Alexander's  Succession,  339. 
Alexander  v.  Burnham,  386. 

v.  De  Kermel,  122. 

v.  Gibbon,  533,  551. 

v.  State,  541. 
Allcard  v.  Skinner,  182. 
Allegheny  v.  Nelson,  93,  398. 
Allen  v.  Aldrich,  192,  193. 

v.  Allen,  26. 

v.  Blunt,  85,  87. 

v.  Brown,  148. 


v.  De  Groodt,  301. 

v.  Everly,  307,  312. 

v.  Frawley,  221. 

v.  Griffin,  118,  332,  334,  335. 

v.  Hall,  236,  239. 

v.  Hartfleld,  324. 

v.  International  T.  B.  Co.,  504. 

v.  Konrad,  211. 

v.  McCorkle,  346. 

v.  P.  &  C.  R.  Co.,  228. 

v.  Sayward,  519,  530. 

v.  Scharringhausen,    383,    394 

v.  Shaw,  560. 

v.  United  States,  199. 
Allen  County  Com'rs  v.  Simons,  90. 
Allin  v.  Shadburne's  Ex'r,  195. 
Allin's  Heirs  v.  Hall's  Heirs,  493. 
Allison  v.  Chandler,  206. 
Allman  v.  Owen,  445. 
Alloway  v.  Nashville,  114. 
Allum  v.  Perry,  568. 
Almy  v.  Daniels,  507. 
Alsop  v.  Bowtrell,  246. 

v.  Mather,  502. 

Alston  v.  Hawkins,  314,  315,  316. 
Alt  v.   Banholzer,   537. 
Althof  v.  Conheim,  344. 
Alvord  v.  Baker,  323,  325. 
Ambler  v.  Whipple,  478. 
Ambs  v.  Chicago  St.  P.  M.  &  O.  R. 

Co.,  195. 

American  v.  Rimpert,  36. 
American  Ace.   Co.  v.  Reigart,  19, 

266. 

American  Co.  v.  Bradford,  366. 
American  Ins.  Co.  v.  Smith,  232. 
American  Mortg.  Co.  v.  Wright,  222. 
American    Mut.    Aid    Soc.    v.    Hel- 

burn,  94. 

American  T.  &  B.  Co.  v.  Boone,  232. 
American  T.  &  I.  Co.  v.  Baden  Gas 
Co.,  175. 


TABLE  OF  CASES. 


571 


[BEFEBENCES  ABE  TO  PAGES.] 


American  Union  Tel.  Co.  v.  Union 

Pac.  R.  Co.,  548. 
American  Waterworks  Co.  v.  State, 

465. 
Ames  v.  Beckley,  533. 

v.  Dorroh,  147,  149,  174. 

v.  Snider,  32. 

v.  Williams,  99,  103. 
Amos  v.  Hughes,  19,  41. 
Amsden  v.  Dubuque  &  S.  C.  R.  Co., 

514. 

Amy's  Estate,  In  re,  106. 
Anderson  v.  Anderson,  390,  413. 

v.  Bell,  395. 

v.  Cecil,  391. 

v.  Cranmer,  330,  336. 

v.  Gray,  101. 

v.  How,  32. 

v.  Hubble,  559,  562. 

v.  Morice,  146,  147. 

v.  Morice  L.  R.,  62,  67. 

v.  O'Donnell,  403. 

v.  Phlegar,  525. 

v.  Reid,  533,  534. 

v.  Soward,  222. 

v.  Wasatch  &  Jordan  V.  R.  Co., 
275. 

v.  Weston,  118,  119. 
Andover  v.  Merrimack  County,  307. 
Andrews  v.  Anderson,  5.17. 

v.  Beck,  340. 

v.  Galloway,  136. 

v.  Davison,  496. 

v.  Denison,  496. 

v.  Frye,  166. 

v.  German   Nat.  Bank,  318,  319. 

v.  Hayden's  Adm'r,  126. 

V.  Hoxie,  382. 

v.  Montgomery,    487. 

y.  Sparhawk,  306. 
Androscoggin  Bank  v.  Kimball,  209. 
Andrus  v.  Foster,  303. 


Angel  v.  McLellan,  144. 

Angell  v.  State,  200. 

Angelo  v.  People,  11,  13,  15,  138, 

198. 

Angle   v.   Bilby,   469. 
Ankeny  v.  Penrose,  306,  310. 

v.  Pierce,  321. 
Annapolis    &    B.    S.    L.    R.    Co.    v. 

Pumphrey,  272. 

Annesley's  Lessee  v.  Anglesea,  160. 
Annin  v.  Annin,  174. 
Anniston  Nat.  Bank  v.  School  Com- 
mittee,  14. 

Anonymous,  388,  410,  411. 
Anthony  v.  Mercantile  M.  A.  Ass'n, 
266. 

v.  Wheeler,  9. 
Apel  v.  Kelsey,  102. 
Apgar,  Application  of,  299. 
Apollon,  The,  420,  427. 
Apothecaries  Co.  v.  Bentley,  Ryan 

&  M.,  44. 

Apperson  v.  Pattison,  39. 
Applegate   v.   Applegate,    242,    244, 
245. 

v.  Dowell,  509. 

v.  Lexington  &  C.  C.  Min.  Co., 

99. 

Appleton  v.  People,  202,  206. 
Arayo  v.  Currel,  414,  417. 
Arbon  v.  Fussell,  117. 
Arbuckle  v.  Templeton,  163,  168. 

v.  Ward,  366. 
Archer  v.  English,  471. 

v.  Haithcock,  236,  242,  245. 

v.  Hudson,  180,  183. 
Arctic  Bird,  The,  214. 
Argyle  v.  Hunt,  404. 
Armory  v.  Delamirie,  157,  343. 
Armour  v.  Mich.  Cent.  R.  Co.,  549, 

560,  562,  563. 
Armstrong  v.  Armstrong,  184,  185. 


572 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  PAGFS.] 


v.  Risteau,  361,  362,  363. 

v.  State,  23,  326,  328,  335. 

v.  United  States,  387. 
Arndt  v.  Cullman,  399. 
Arnegaard  v.  Arnegaard,  124. 
Arnett  v.  Wanett,  174. 
Arnold  v.  Cheesebrough,  236,  237. 
239. 

v.  Richmond  Iron  Works,  223. 

v.  Stevens,  354,  363. 
Aron  v.  Wausau,  404. 
Arroyo  D.  &  W.  Co.  v.  Superior  Ct, 

105. 

Ash's  Estate,  In  re,  307. 
Ashbury  v.  Sanders,  255,  256. 
Ashbury,  R.  C.  &  I.  Co.  v.  Riche, 

546,    547. 

Ashby  v.  Bates,  19,  37. 
Ashe  v.  Derosset,  88. 

v.  Lanham,  81,  94. 
Asher  v.  Whitlock,  345. 
Ashford  v.  Prewitt,  507. 
Ashley  v.  Laird,  104. 
Ashley's  Adm'x  v.  Martin,  406. 
Ashley  Wire  Co.  v.  111.  Steel  Co.,  85, 

87,  114. 
Ashtaula  &  N.  L.  R.  Co.  v.  Smith, 

110. 
A.shton  v.  Rochester,  490,  497. 

v.  Thompson,  179,   183. 
Askew  v.  Odenheimer,  169. 
Aslanian  v.  Dostumian,  226,  227. 
Aslin  v.  Parkin,   505. 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Betts, 
412. 

v.  Blackshire,  401. 

v.  Campbell,  439. 

v.  Dill,  213. 

v.  Headland,  295,  437. 

v.  Stanford,  274. 
Atchley  v.  Sprigg,  27,  249,  250. 
Atkins  v.  Payne,  561. 

v.  Withers,  180. 


Atkinson  v.  Atkinson,  230. 

v.  Dance,  308. 

v.    Goodrich    Transp.    Co.,    18: 

43,  274,  275.    ' 

Atlanta  Journal  v.  Mayson,  25. 
Atlantic  Dock  Co.  v.  Leavitt,  529. 
Atlas  Bank  v.  Doyle,  128. 
Attleborough  v.  Middleborough,  33, 

324. 

Attorney  General  v.  Chicago  &  N. 
W.   R.    Co.,    110. 

v.  Dean  of  Queen's  Free  Chap- 
el, 159. 

v.  Dublin,  430,  436,  445,  455. 

v.  Ewelme  Hospital,  350. 

v.  Foote,  397,  441,  447. 

v.  Halliday,  158. 

v.  Marr,  555. 

v.  Partner,    330,    335. 

v.  Revere  Copper  Co.,  350,  356. 

v.  Simonton,  545. 
Atwater  v.  Schenck,  384. 
Aubert  v.  Walsh,  325. 
Audenreid's  Appeal,  182. 
Auerbach  v.  Le  Sueur  Mill  Co.,  548. 
Augusta  v.  Vienna,  84,  85. 
Augusta  Bank  v.  Earle,  425. 
Augusta  &  S.  R.  Co.  v.  Randall,  298. 
Ault  v.   Interstate  S.   &  L.  Ass'n, 

87,  88. 

Aultman  v.  Timm,  194,  195. 
Aultman   &  T.    Co.   v.    Gunderson, 

463. 
Austin  v.  Austin,  95. 

v.  Bailey,  344. 

v.  Holland,  85,  86,  87. 

v.  State,  421,  434,  452. 
Austrian  v.  Springer,  84. 
Avery  v.  demons,  338. 
Ayer  v.  Phila.  &  B.  Face  Brick  Co., 
518. 

v.  Western  Union  Tel.  Co.,  287. 
Ayres  v.  State,  204. 


TABLE  OF  CASES. 


573 


[REFERENCES  ARE  TO  PAGES.] 


B 


Babbage  v.   Powers,   437. 
Babbitt  v.  Bennett,  122. 
Babcock  v.  Camp,  508. 

v.  Fitchburg  R.  Co.,  276. 

v.  Standish,  491. 
Baccigalupo  v.  Com.,  22,  329. 
Bachelder  v.  Lovely,,  520. 
Bacon  v.  Bacon,  184,  331. 

v.  Charlton,  471. 

v.  Smith,  149. 
Baden  v.  McKenny,  253. 
Badger  v.  Badger,  237,  239,  240,  243. 
Baeder  v.  Jennings,  94. 
Baent  v.  Kennicutt,  310. 
Bagley  v.  Kennedy,  345. 

v.  McMickle's  Adm'r,   162. 
Bahia  &  S.  F.  R.  Co.,  In  re,  562,  564. 
Baile  v.  Calvert  College  Education- 
al Soc.,  113. 
Bailey  v.  Bidwell,  129. 

v.  Dilworth,  513. 

v.  Jackson,  306,  313,  314. 

v.  Kalamazoo  Pub.  Co.,  430. 

v.  Martin,  104. 

v.  Shaw,  157. 

v.  Steamer  New  World,  339. 

v.  Taylor,  135. 

v.  Winn,  94. 

Bainbridge  v.  Pickering,  144. 
Baird  v.  Kings  County  Sup'rs,  93. 
Balz,  In  re,  410. 
Baker  v.  Baker,  246,  317. 

v.  Barney,  192. 

v.  Blackburn,  119. 

v.  Brinson,  292. 

v.  Carter,  192. 

v.  Dessauer,  285. 

v.  Hale,  550. 

v.  Hess,  460. 

v.  Kennett,  222. 

v.  Leathers,  301. 


v.  Massey,  219. 

v.  Mygatt,  391. 

v.  Seavey,  553. 

v.  State,  26. 

v.  Westmoreland    &    C.    N.    G. 

Co.,  277,  281. 

Baldwin   v.   Barrows,  212. 
v.  Bricker,  211,  212. 
v.  Gregg,  464,  467. 
v.  Parker,  184,  331. 
v.  Thompson,  528. 
v.  U.  S.  Tel.  Co.,  287. 
Ball  v.  Hill,  341. 
Ballard  v.  Carmichael,  34. 
v.  Demmon,  360,  362. 
Ballew  v.  Clark,  336. 
Balloch  v.  Hooper,  462. 
Ballou  v.  Ballou,  493. 

v.  Earle,  213. 

Balston  v.  Bensted,  354,  365. 
Baltimore  v.  State,  430. 
Baltimore  O.  &  C.  R.  Co.  v.  Scholes, 

24,  119. 
Baltimore   Traction   Co.   v.    Appel, 

278. 
Baltimore  &  O.  E.  Relief  Ass'n  v. 

Post,  83. 

Baltimore  &  O.  R.  Co.  v.  Glenn,  412. 
v.  Noell's  Adm'r,  298. 
v.  Schumacher,  282. 
v.  State,  295. 
Baltimore    &   O.    S.    W.    R.    Co.    v. 

Reed,  226,  228. 
Baltimore    &    O.    &    C.    R.    Co.    v. 

Evarts,  467. 
Baltimore  &  P.  R.  Co.   v.   Swann, 

295,  298. 

Bamberger  v.  Citizens'  St.  Ry.,  281. 
Bamka  v.  Chicago,  St.  P.,  M.  &  O.  R. 

Co.,  499. 

Banbury    Peerage    Case,    62,    245, 
249. 


574 


TABLE  OF  CASES. 


[BKFERENCES  ABE  TO  PAGES.] 


Bancroft-Whitney  Co.  v.  Queen  of 

the  Pac.,  290. 
Bangor  O.  &  M.  R.  Co.  v.  Smith, 

110. 

Bank  of  America  v.  Banks,  528,  539. 
Bank  of  Chillicothe  v.  Dodge,  216. 
Bank  of  Com.  v.  Spilman,  400. 
Bank    of    Hamilton     v.     Imperial 

Bank,    560. 
Bank  of  Ireland  v.  Evans'  Charities, 

559. 
Bank  of  Mobile  v.  Mobile  &  O.  R. 

Co.,  490. 

Bank  of  U.  S.  v.  Daniel,  220. 
Bankard  v.  Baltimore  &  O.  R.  Co., 

292. 

Banks  v.  Burnam,  458. 
Banker  v.  Banker,  330. 
Banner  v.  Rosser,  183. 
Banning  v.  Griffin,  150,  300. 
Bannon  v.  Paremour,  516. 
Bantz  v.  Bantz,  303. 
Barber  v.  Holmes,  194. 

v.  International  Co.,  305. 

v.  Morris,  106. 
Barber  Asphalt  Pav.  Co.  v.  Hunt, 

96. 

Barber's   Appeal,   331. 
Barber's  Estate,  In  re,  7,  17,  67,  68, 

161,  332,  334. 
Barclay  v.  Kimsey,  502. 
Bardeen   v.    Markstrum,    344. 
Bardin  v.   Bardin,   253,   260. 
Barelli  v.  Brown,  320. 
Barfield  v.  Britt,  26. 
Barhight  v.  Tammany,  33. 
Barker  v.  Circle,  522. 

v.  Clark,  361. 

v.  Cleveland,  506. 

v.  Jones,  310. 
Barnard  v.  Babbitt,  34. 
Barnes  v.  Barnes,  121,  151,  215. 


v.  Peet,  341,  343. 

v.  Shreveport  City  R.  Co.,  141, 
161. 

v.  Toye,  145. 
Barnet  v.  Smith,  318. 
Barney  v.  Dewey,  496. 
Barney's  Will,  In  re,  186,  215. 
Barnhart  v.  Ehrhart,  94. 
Barnowski   v.   Helson,   271. 
Barns  v.  Hatch,  122. 
Barnum  v.  Barnum,  236,  237,  238, 

239,  242. 

Barony  of  Saye  &  Sele,  248. 
Barranger  v.  Baum,  415,  445. 
Barrett,  In  re,  43. 
Barrett  v.  Stradl,  148. 
Barrick  v.  Austin,  128. 

v.  Homer,  488. 
Barrickman    v.    Marion    Oil    Co., 

282. 

Barron   v.    Cobleigh,   344. 
Barronet,  In  "re,  216. 
Barry  v.  Butlin,  216. 
Bartelott  v.  International  Bank,  8, 

40. 
Bartlett  v.  Bartlett,  313. 

v.  Blake,  173. 

v.  Hoyt,  343. 

v.  W.  U.  Tel.  Co.,  287. 
Barton  v.  Laws,  461,  467. 

v.  People,  342. 

v.  Sutherland,  46. 

v.  Thompson,  27. 
Bartram  v.  Sharon,  280. 
Barwick  v.  Thonlpson,  551. 
Bascom  v.  Smith,  211. 
Bass  v.  Chicago  B.  &  Q.  R.  Co.,  274. 

v.  Roanoke  N.  &  W.  P.  Co.,  356. 
Bassett  v.  Porter,  96. 
Bastrup  v.  Prendergast,  560. 
Bates  v.  Cain's  Estate,  322. 

v.  Campbell,  345. 


TABLE  OP  CASES. 


575 


[REFERENCES  ARE  TO  PAGES.] 


v.  Forcht,  20. 

v.  Harte,  209,  211,  212. 

v.  Morris,  165. 

v.  Norcross,  531. 

v.  Pricket,  62. 
Bath  v.  Bathersea,  474. 
Battin's  Lessee  v.  Bigelow,  251. 
Battles  v.  Holley,  80,  81,  95. 
Baudin  v.  Roliff,  173. 
Baughman  v.  Baughman,  19,  330. 
Baumann  v.  Granite  Sav.  Bank,  382. 
Baumier  v.  Antiau,  321. 
Baxendale  v.  Bennett,  557. 
Baxter  v.  Abbott,  331,  333. 

v.  Bradbury,  517,  522. 

v.  Camp,  4,  16,  17. 

v.  Ellis,   130. 

v.  McDonnell,  421,  436. 

v.  Myers,  495,  506. 
Bay  v.  Cook,  302. 
Bayard  v.  Baker,  96. 

v.  Shunk,  319. 
Bayha  v.  Mumford,  194. 
Bayles  v.  Kan.  P.  R.  Co.,  233. 
Bayley  v.  McCoy,  515. 
Bayliss  v.  Williams,  179. 
Bayly's  Adm'r  v.  Chubb,  39,6. 
Beach  v.  Beach,  349. 
Beadles  v.  McElrath,  234. 
Beal  v.  Somerville,  440. 
Bealey  v.  Shaw,  349,  354. 
Beall  v.  Davenport,  550. 

v.  Mann,  215. 

v.  Seattle,  272. 
Beals  v.  Cone,  499. 
Beaman  v.  Russell,  132,  133,  137. 
Bean  v.  Tonnele,  314. 
Bear  v.  Brunswick  County  Com'rs, 

497. 

Bearce  v.  Bass,  8,  208. 
Beard  v.  111.  Cent.  R.  Co.,  294. 
Beardstown  v.  Virginia  City,  32,  97. 


Beasley  v.  Beckley,  400. 
Beasney's  Trusts,  In  re,  256. 
Beatty  v.  Fishel,  172. 
Beaty  v.  Knowler's  Lessee,  401. 
Beaumont  v.  Mountain,  401. 
Beaver  v.  Beaver,  123. 
Beazley  v.  Denson,  332,  334. 
Beck  &  Paul!  Lith.  Co.  v.  Evans- 
ville  B.  Co.,  429. 

v.  Houppert,  25,  211. 
Becker  v.  W.  U.  Tel.  Co.,  287. 
Beckett  v.  Selover,  501. 
Beckman  v.  Shouse,  283,  284. 
Bedard  v.  Hall,  94. 
Bedell  v.  Herring,  212. 
Bedford  v.  Urquhart,  533. 
Bedford,  S.  O.  &  R    R.  Co.  v.  Rain- 
bolt,  298. 

Bedgood  v.  McLain,  132. 
Beebe  v.  Elliott,  50. 

v.  Morrell,   107. 

v.  Real  Estate  Bank,  322. 

v.  State,  435. 

v.  United  States,  384,  387. 
Beecher  v.  Brookfleld,  34. 

v.  Wilson,  340. 

Beekman  v.  Hamlin,  306,  310. 
Beem   v.  Kimberly,   83. 
Bee  Print  Co.  v.  Hichborn,  451. 
Behrens  v.  Germania  Ins.  Co.,  27. 
Belden  v.  Seymour,  496. 
Belknap  v.  Ball,  465. 

v.  Stewart,  192,  500,  507. 
Bell  v.  Adams,  517,  531. 

v.  Farmers'  Bank,  124. 

v.  Fernald,  207. 

v.  McGinness,  26. 

v.  Reed,  289. 

v.  Schafer,  550. 

v.  Senneff,  35. 

v.  Skillicom,    4.    35,    344. 

v.  State,  191.  435. 


576 


TABLE  OF  CASES. 


[BEFERENCES  ABE  TO  PAGES.] 


v.  Todd,  526. 

v.  Young,  149. 

Belmont  v.  Morrill,  398,  399. 
Belo  v.  Fuller,  208. 

v.  Spach,  311. 

Belt  v.  Wilson's  Adm'r,  342. 
Beltzhoover  v.  Blackstock,  126,  127, 

129,  130. 

Bemis  v.  McKenzie,  226. 
Benbow  v.  Cook,  113. 
Bender    v.    Montgomery,    309,    313, 

315. 

Benedick  v.  Potts,  269. 
Benedict  v.  Cowden,  561. 

v.  M.  &  St.  L.  R.  Co.,  142. 
Benesch  v.  Waggner,  526. 
Benjamin,  In  re,  259. 
Benjamin  v.  Benjamin,  191. 

v.  Ellinger's  Adm'r,  169. 

v.  Gill,  550. 

Benne  v.  Schnecks,  225. 
Benner   v.    Atlantic    Dredging   Co., 

396. 

Bennet  v.  Bennet,  301. 
Bennett  v.  American  Exp.  Co.,  289. 

v.  Bennett,  340. 

v.  Biddle,   364. 

v.  Filyaw,  290. 

v.  Francis,  471. 

v.  Graham,  503. 

v.  Holmes,  512. 

v.  Libhart,  195. 

v.  Marion,    407. 

v.  North  British  &  M.  Ins.  Co., 
423. 

v.  O'Fallon,  193. 

v.  State,  20,  150. 

v.  Waller,  519. 
Benning  v.  Nelson,  124. 
Benoit  v.  Troy  &  L.  R.  Co.,  7. 
Bensimer  v.  Fell,  500,  502,  511. 
Benson  v.  Olive,  251. 


Bentley  v.  Greer,  222. 

v.  O'Bryan,  511. 
Benton  v.  Cent.  R.,  280. 
Benz  v.  Hines,  499. 
Berber  v.  Kerzinger,  498. 
Berberet  v.  Berberet,  184. 
Berckmans  v.  Berckmans,  26. 
Bergen  v.  Riggs,  343. 
Bergen     County    Traction    Co.    v. 

Demarest,  297. 

Bergere  v.  United  States,  120. 
Bergeron  v.  Richardott,  507. 
Bergey's  Appeal,  340. 
Bergh  v.  Warner,  192. 
Berkmeyer  v.  Kellerman,  179. 
Berkshire  Woolen   Co.   v.   Proctor, 

286. 

Bernard  v.  R.  F.  &  P.  R.  Co.,  275. 
Berne  v.  Bank  of  England,  409. 
Bernhardt  v.   Brown,   103,   533. 
Bernheimer  v.  Rindskopf,  173. 
Berrenberg  v.  Boston,   147. 
Berringer   v.    Lake   Superior    Iron 

Co.,  33. 

Berry  v.  Cooper,  291. 
v.  Griffin,  320. 
v.  Whitney,  221. 
Berryman  v.  Wise,  82. 
Berthelemy  v.  Johnson,  518. 
Bessette  v.  People,  400. 
Best  Brew.  Co.  v.  Klassen,  547. 
Bestor  v.  Hickey,  222. 
Bethell  v.  Bethell,  216,  221,  225. 
Bethje  v.  H.  &  C.  T.  R.  Co.,  273. 
Bethum  v.  Turner,  363. 
Betsinger  v.  Chapman,  243. 
Bettman  v.  Cowley,  420. 
Betts  v.  Starr,  505. 
Bevens  v.  Baxter,  399. 
Bever  v.  North,  496. 
Beveridge  v.  N.  Y.  El.  R.  Co.,  498. 
Bey's  Succession,  337. 


TABLE  OP  CASES. 


577 


[REFERENCES  ARE  TO  PAGES.] 


Bibb  v.  State,  188. 
Bickerton  v.  Walker,   549,  563. 
Bickford  v.  First  Nat.  Bank,  319. 
Biddle  v.  Bond,  552. 

v.  Girard  Nat.  Bank,  315. 
Bienville  Water-Supply  Co.  v.  Mo- 
bile, 437. 
Bigelow  v.  Burnham,  35,  224,  341. 

v.  Nickerson,  269,  296. 
Billard  v.  State,  21. 
Billgerry  v.  Branch,  86. 
Billing  v.  Pilcher,  192. 
Billings  v.  Stark,  122. 
Billingsley  v.  Dean,  412. 
Bingham  v.  Bingham,  219. 

v.  Kirkland,  523. 

v.  Salene,  182. 

v.  Stanley,  129,  462,  463. 
Bird  v.  Com.,  396. 

v.  Smith,    354,    356,    362. 
Bird's  Adm'r  v.  Inslee's  Ex'rs,  306. 
Birge  v.  Gardner,  142. 
Birkhauser    v.    Schmitt,    219,    220. 
Birmingham  Union  R.  Co.  v.  Hale, 

18,  267,  298. 
Birmingham  W.  W.  Co.   v.  Hume, 

228,  229,  418. 
Bishop,  In  re,  257. 
Bishop  v.  Allen,  211. 

v.  Chambre,  134. 

v.  Jones,  427. 

v.  State,  395. 
Bissell   v.   Jaudon,   310,   311. 

v.  Morgan,  129. 

v.  Wert,   25. 

Bixler's  Adm'x  v.  Parker,  401. 
Bjmerland  v.  Eley,  124. 
Black  v.  Carpenter,  314. 

v.  Ward,  217. 
Blackburn  v.  Bell,  523. 

v.  St.  Paul  Fire  &  M.  Ins.  Co., 
27. 


v.  Scholes,  471. 

v.  Squib,  308. 

v.  Vigors,  66. 

Blackball  v.  Gibson,  524,  527,  528. 
Blackie  v.  Clark,  182. 
Blackmore  v.  Gregg,  500. 
Blackwood  v.  Brown,  490. 
Blaeser   v.    Milwaukee   Mechanics' 

Mut.  Ins.  Co.,  27. 
Elaine  vTRay,  354. 
Blair  v.  Anderson,  488. 

v.  Howell,   120. 

v.  Madison  County,  432. 

v.    Pelham,  429. 

v.  Wait,  563. 

Blaisdell  v.   Leach,   538,   565. 
Blake   v.    Damon,   38. 
Blake's  Ex'rs  v.  Quash's  Ex'rs,  308, 

311. 

Blakeman  v.   Blakeman,   219. 
Blakeney  v.  Ferguson,  466. 
Blaker  v.  State,  370. 
Blakeslee  v.  Tyler,  191. 
Blakey  v.  Johnson,  561. 
Blanchard  v.  Allain,  558. 

v.  Brooks,   520. 

v.  Ellis,  517,  522. 

v.  Lake  S.  &  M.  S.  R.  Co.,  8, 
280,  281. 

v.  Lambert,  151,  241,  243. 

v.  Tyler,  122,  530. 

v.  Young,  17,  36. 
Blankenship  v.  State,  368. 
Blasini  v.  Blasini's  Succession,  115, 

236,   238. 

Blatz  v.  Rohrbach,  435. 
Blecker  v.  Johnston,  165. 
Blen  v.  Bear  R.  &  A.  W.  &  M.  Co., 

209. 

Bless  v.  Jenkins,  85. 
Blessing   v.    John    Trageser    S.    C. 
Works,  420. 


578 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  PAGES.] 


Blight   v.    Schenck,    121,    124. 
Blight's  Lessee  v.   Rochester,   516. 
Bliley  v.  Wheeler,  37. 
Bliss  v.  Brainard,  45. 
Blodgett  v.  Abbot,   290. 

v.  Perry,  95,  557,  565,  566. 
Bloomenthal  v.  Ford,  566. 
Blossom  v.  Cannon,  95. 
Blough  v.   Parry,  332. 
Bloxam  v.  Sanders,  324. 
Bloxham  v.  Consumers'  Elec.  Light 

&  S.  R.  Co.,  375,  388. 
Blum  v.  Loggins,  127,  129. 

v.  Strong,  30. 

Blume  v.  Hartman,  20,  215. 
Blumenthal  v.  Pac.  Meat  Co.,  428. 
Blunt  v.  Barratt,  18,  38. 

v.  Walker,  317. 
Boardman  v.  De  Forest,   306,   314, 

315. 

Boatman  v.  Curry,  237. 
Boatner  v.  Ventress,  486. 
Bock  v.  Lauman,  412. 
Bodfish  v.  Bodflsh,  361,  362. 
Bodmin   United   Mines   Co.,    In   re, 

430. 

Bodwell  v.  Osgood,  207. 
Body  v.  Jewsen,  147,  149. 
Boeger  v.  Langenberg,  32,  33. 
Boehl  v.  Chicago  M.  &  St.  P.  R.  Co., 

288,    289,    291. 
Bogenschutz  v.  Smith,  279. 
Boggs  v.  Clark,  381,  382,  390,  428. 

v.  Merced   Min.  Co.,   562. 
Bogue  v.  Bigelow,  195. 
Bogy  v.  Roberts,  301. 

v.  Shoab,  520. 
Bohannon  v.  Travis,  541. 
Bohon  v.  Bohon,  520,  532. 
Boies  v.  H.  &  N.  H.  R.  Co.,  283. 
Boisblanc's  Succession,  342. 
Bolivar  Mfg    Co.  v.  Neponset  Mfg. 

Co.,  355. 


Bolles  v.  Beach,  527. 
Boiling  v.  Kirby,  154. 

v.  State,  22,  327. 

v.  Teel,  533. 

Bellinger  v.  Gallagher,  231,  232. 
Bolln  v.  Metcalf,  478. 
Bolton  v.  Harrod,  341. 
Bomar  v.  Means,  465. 
Bond  v.  State,  22,  327. 

v.  Terrell   C.   &   W.   Mfg.    Co., 

547. 
Bonflglio  v.  L.  S.  &  M.  S.  R.  Co. 

290. 

Bonner  v.  Young,  306. 
Boody  v.  Davis,  120,  122,  123. 
Booker's   Adm'r   v.   Booker's  Rep., 

305. 

Boon  v.  State  Ins.  Co.,  86. 
Boone  v.  Puonell,  239. 
Boorman    v.    American    Exp.    Co. 

119,   213. 

Boorum  v.  Armstrong,  85. 
Booske  v.  Gulf  Ice  Co.,  545. 
Booth  v.  Bounce,  176. 

v.  Smith,  316. 
Boothby   v.    Stanley,    134. 
Boots  v.  Canine,  467. 
Boozer  v.  Teague,  148. 
Borden  v.  Croak,  30. 
Borgess  Inv.  Co.  v.  Vette,  127. 
Borland  v.  Nev.  Bank,  325. 
Born  v.  First  Nat.  Bank,  319. 
Boro  v.  Harris,  83. 
Borthwick  v.  Carruthers,  29,  143. 
Boslow  v.    Shenberger,   66. 
Boston  v.  Neat,  344. 

v.  State,  383. 

v.  Worthington,    494,   495. 
Bostwick  v.  Baltimore  &  0.  R.  Co., 

214. 
Boswell  v.  Smith,  325. 

v.  State,    21. 
Bothick  v.  Bothick,  236,  238,  242. 


TABLE  OF  CASES. 


579 


[REFERENCES  ABE  TO  PAGES.] 


Botna  Valley  State  Bank  v.  Silver 

City  Bank,  152. 
Bott  v.  Wood,  158,  165,  169. 
Bottoms  v.  S.  &  R.  R.  Co.,  141. 
Bottorff  v.  Wise,  512. 
Botts  v.  Botts,  115. 
Boughton  v.  Knight,  336. 
Boulden  v.  Mclntire,  32,  151. 

v.  State,   202,   205. 
Boulter  v.  Hamilton,  522. 
Boulware  v.  Davis,  114. 
Bound  v.  Wis.  Cent.  R.  Co.,  94. 
Boutwell  v.  Steiner,  500. 
Bovee  v.  Danville,  279,  280. 
Bow  v.  Allenstown,  109./ 
Bowden  v.  Bowden,  173,  176. 

v.  Henderson,  253. 

v.  Parrish,  124. 

Bowdoinham  v.  Phippsburg,  152. 
Bowe  v.  Bowe,  180. 
Bowen  v.  De  Lattre,  466. 

v.  St.  Paul  M.  &  M.  R.  Co.,  275. 
Bower  v.  McCormick,  523,  524,  525, 

539,  542. 

Bowerman  v.  Sybourn,  348. 
Bowers  v.  Jewell,  136. 

v.  Thomas,   211,  212. 

v.  Van  Winkle,  237,  244. 
Bowie  v.  Kansas  City,  401. 

v.  Poor  School  Soc.,.  306,  312. 
Bowman   v.   First   Nat.    Bank,    67, 
440. 

v.  Mitchell,  136. 

v.  Taylor,   524. 
Bowser  v.   Bliss,  31,  37. 

v.  Cole,  136. 
Boyce  v.  Cal.  Stage  Co.,  298. 

v.  Lake,  212,  306,  310,  313. 

v.  Towsontown  Station,  545. 
Boyd    v.    American    Carbon    Black 
Co.,  548. 

v.  Banta,  140. 


v.  Harris,  305. 

v.  New  England  M.  L.  Ins.  Co., 
253,  256. 

v.  Portland  Gen.  Elec.  Co.,  270. 

v.  State,  160,  167,  169,  367,  371. 
Boyd's  Ex'rs  v.  Browne,  207. 
Boyer  v.  Teague,  97. 
Boykin  v.   Cook,   501. 
Boylan  v.  Hot  Springs  R.  Co.,  214. 
Boyland   v.   Boyland,   101. 
Boynton  v.  Equitable  L.  A.  Co.,  266. 
Braceville  Coal  Co.  v.  People,  400, 

420,  425. 

Bracken  v.  Miller,  322. 
Brackenrldge  v.  Claridge,  37. 
Brackett  v.  Persons  Unknown,  113. 
Bradford  v.  Burgess,  518. 

v.  Cunard  S.  S.  Co.,  450,  451. 
Bradish  v.  Bliss,  28. 
Bradley  v.  Bradley,  253. 

v.  Dells  Lumber  Co.,   133. 

y.  Kent's  Ex'r,  303. 

v.  Reppell,  545. 

v.  Sandilands,   94. 

v.  Spofford,  153. 

Bradley's  Fish  Co.  v.  Dudley,  359. 
Bradshaw  v.  Yates,  179. 
Bradstreet  v.  Gill,  208. 
Bradwell   v.    Pittsburgh    &   W.    E. 

Pass.  R.  Co.,  278. 
Brady  v.  Brady,  491. 

v.  Chicago  &  G.  W.  R.  Co.,  267. 

v.  Pryor,   509. 
Braiden  v.  Mercer,  504. 
Bramble  v.  Beidler,  550. 
Branch  v.  Morrison,  344. 
Brand  v.  Johnrowe,  134. 
Brandao  v.  Barnett,  440. 
Brandenburgh  v.  Three  Forks  Dep. 

Bank,  523. 

Branham  v.  San  Jose,  465. 
Brannan  v.  Adams,  436. 


580 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  PAGES.] 


Branson  v.  Wirth,  535,  541,  542. 
Brant  v.  Virginia  C.  &  I.  Co.,  562. 
Brantham  v.  Canaan,  314. 
Brattle  Square  Church  v.  Bullard, 

354,   355. 

Bratton  v.   State,   200. 
Brayshaw  v.  Eaton,  145. 
Brazee  v.  Schofield,  523,  534. 
Brazil  v.  Moran,  190. 
Brazill  v.  Isham,  466. 
Breakey  v.  Breakey,  237,  238,  239, 

242,  244. 

Breckenridge  v.  Todd,  122. 
Breed  v.  First  Nat.  Bank,  84. 

v.  Pratt,  186,  336. 
Breen  v.  New  Y.  C.  &  H.  R.  R.  Co., 

298. 

Breiden  v.  Paff,  258. 
Brenan's  Case,  105. 
Breneman's  Appeal,  306,  310. 
Brennan  v.  Gordon,  276. 
Brent  v.  State,  217. 
Bresee  v.  Stanly,  222. 
Bretz  v.  New  York,  399. 
Brewer  v.  Knapp,  324. 
Brewer   Lumber   Co.   v.   Boston   & 

A.  R.  Co.,  317. 
Brewster   v.    Striker,    232. 
Brice  v.  Myers,  174. 
Brickell  v.  New  York  Cent.  &  H.  R. 

R.  Co.,  280,  281. 
Bridge  v.  Gray,  512. 
Bridgeport  F.  &  M.  Ins.  Co.  v.  Wil- 
son, 495,  496. 
Bridger  v.   Asheville  &   S.  R.   Co., 

501. 

Bridges  v.  McAlister,  491,  493. 
Bridwell  v.  Swank,  185. 
Briem  v.  Hart,  102. 
Briffit  v.  State,  435,  445. 
Briggs  v.  Briggs,  304. 

v.  Fleming,    118,    122. 


v.  Hervey,  84,  87. 

v.  Holmes,  318. 

v.  Humphrey,  172. 

v.  McCullough,  109. 

v.  Prosser,  348. 
Briggs'  Appeal,  308. 
Brigham  Young  Trust  Co.  v.  Wag- 

ener,  563. 
Bright  v.  Allan,  566,  568. 

v.  Walker,  360. 
Brighton  v.  White,  67. 
Brill  v.  St.  Louis  Car  Co.,  43,  162, 

232. 

Brimhall  v.  Van  Campen,  231. 
Brinegar  v.  Chaffin,  528. 
Brinkley  v.  Brinkley,  238,  239,  243. 
Briscoe   v.    Bronaugh,    176. 
British  &  A.  Mortg.  Co.  v.  Tibballs, 

440. 

Britton   v.    State,    492. 
Broadbent  v.   Ramsbotham,   365. 
Broard   St.  Hotel  Co.  v.  Weaver's 

Adm'r,  398. 
Brobst  v.  Brock,  314. 
Brodie  v.  Bickley,  502. 
Brodrib  v.  Brodrib,  504. 
Bromwell  v.  Bromwell,  340. 

v.  Bromwell's  Estate,  325. 
Bronx,  The,  16,  17,  50. 
Brooke  v.  Haymes,  539. 

v.  People,   196,   368. 
Brooker  v.  Scott,  144. 
Brookhaven  v.  Smith,  563. 
Brooklyn  City  &  N.  R.  Co.  v.  Nat. 

Bank,  340. 
Brooks  v.  Day,  85. 

v.  State,  370,  i>*l. 
Brook's  Estate,  185. 
Brosser  v.  Mont.  C.  R.  Co.,  279. 
Brothers  v.  Kaukauna  Bank,  567. 
Brotherton  v.  People,  23,  326,  329. 
Broughton  v.  Blackman,  387. 


TABLE  OF  CASES. 


681 


[REFERENCES  ARE  TO  PAGES.] 


v.  Hutt,  219. 

v.  McGrew,  38,  206,  207. 
Broult  v.  Hanson,  12,  17,  18. 
Brounker  v.  Atkyns,  502. 
Brown  v.  Adams  Exp.  Co.,  290,  292. 

v.  Anderson,  425. 

v.  Barse,  164. 

v.  Bradford,   503. 

v.  Brown,  330. 

v.  Burbank,   180. 

v.  Burnham,  146. 

v.  Campbell,    489. 

v.  Castellaw,   90,   147. 

v.  Chaney,  490,  500. 

v.  Edisen  Elec.  Ilium.  Co.,  270. 

v.  H.  &  St.  J.  R.  Co.,  273 

v.  Jewett,  255,  261. 

v.  Kimball,  195. 

v.  King,  148. 

v.  Lincoln,  448. 

v.  L.  &  N.  R.  Co.,  116. 

v.  McCormick,  517. 

v.  Manter,  537. 

v.  Metz,  194. 

v.  Mitchell,  170,  175,  176. 

v.  Mudgett,  192. 

v.  M.  &  St.  P.  R.  Co.,  281. 

v.  Nichols,  100. 

v.  Norfolk  &  W.  R.  Co.,  208. 

v.  Oldham,    347. 

v.  Olmsted,  31t>. 

v.  Phillips,  521. 

v.  Piper,  418,  421,  428,  429,  441, 
456. 

v.  Reed,   5bl. 

v.  Rice's  Adm'r,  221. 

v.  Roberts,  507. 

v.  Schock,  7,  53. 

v.  Scott,  304. 

v.  Sims,  561,  562. 

v.  Staples,  542. 

v.  State,  198,  200,  201,  205,  244. 

v.  Sullivan,   279,   281. 


v.  Taylor,   496,  497. 

v.  Taylor's  Committee,  342. 

v.  Thompson,  55T. 

v.  Tourtelotte,  27. 

v.  Ward,  336,  337. 

v.  Waterman,   284. 

v.  Wheelock,  103. 

v.  Wood,  100,  107. 

v.  Wright,  90,  226,  230. 
Browne  v.  Philadelphia  Bank,  389. 

v.  Stecher  L.  Co.,  461. 
Brownfleld  v.  Dyer,  101. 
Browning  v.  Goodrich  Transp.  Co., 
289,  290. 

v.  Wheeler,  108. 

Brubaker's  Adm'r  v.  Taylor,  308. 
Bruce  v.  Patterson,  248,  250. 

v.  Slemp,  123. 

v.  United   States,  526. 
Brucker  v.  State,  458. 
Bruckman  v.  Taussig,  104,  105. 
Brundred  v.  Walker,  517. 
Brune  v.  Thompson,  385. 
Brunswick  v.  McKenn,  97. 
Brunswick  Gas  Light  Co.  v.  United 

Gas,  F.  &  L.  Co.,  547. 
Brush  v.  Wnson,  503. 
Bryan  v.  Beckley,  423. 

v.  Scholl,  384. 

v.  Tooke,  131. 
Bryant  v.  Foot,  355,  406. 

v.  Groves,   34. 

v.  State,   47,   368. 

v.  Stillwell,  157. 
Buchanan  v.  Rowland,  305,  313. 

v.  State,  243. 

v.  Witham,  396. 
Buck  v.  Aikin,  344. 

v.  Pa.  R.  Co.,  291,  292,  293. 
Buckey  v.  Buckey,  330. 
Buckeye  Marble  &  F.  Co.  v.  Harvey, 

547. 
Buckeyes,  The,  269. 


582 


TABLE  OF  CASES. 


[BEFEBENCES  ABE  TO  PAGES.] 


Buckingham  v.  Ludlum,  502. 
Buckingham's  Lessee  v.  Hanna,  523. 
Buckinghouse  v.  Gregg,  381. 
Buckles  v.  Ellers,  228. 
Budd  v.  Brooke,  358. 

v.  United  Carriage  Co.,  296. 
Buesching  v.  St.  Louis  Gas  Light 

Co.,  277. 
Buffalo  Pipe  Line  Co.  v.  New  York, 

L.  E.  &  W.  R.  Co.,  428. 
Bufferlow  v.  Newsom,  531. 
Buffington  v.  Cook,  498. 
Bufford  v.  Holliman,  413. 
Buffum  v.  Stimpson,  104. 
Buford  v.  Adair,  492,  517,  531. 

v.  Tucker,  406. 
Buhols  v.  Boudousquie,  83. 
Buie  v.  Buie,  314. 
Bulger  v.  Ross,  184. 
Bulkeley  v.  House,  498. 
Bulkley  v.  Stewart,  486. 
Bullen  v.  Arnold,  80. 

v.  Mills,   551. 

v.  Runnels,  354. 
Bullitt  v.  Taylor,  123. 
Bullock  v.  Babcock,  141. 

v.  Knox,   249. 

v.  Sprowls,  132. 
Bulpit  v.  Matthews,  425. 
Bumpus  v.  Fisher,  103. 
Bunbury  v.  Matthews,  82. 
Bunce    v.    Wolcott,    347,    349,    350, 

355,   359. 
Bundy  v.  Hart,  28,  229. 

v.  McKnight,    184. 
Bunker  v.  Barren,  317. 

v.  Rand,  107. 

v.  Shed,    118. 
Bunton  v.  Lyford,  100. 
Burch  v.   Smith,   176. 
Burchard  v.  Hubbard,  530. 
Burckhalter  v.  Coward,  26. 


Burdett  v.  Williams,  222. 

v.  Wrighte,  348. 
Burdict  v.  Mo.  Pac.  R.  Co.,  226. 
Burdine  v.  Burdine's  Ex'r,  233. 

v.  Grand  Lodge,  420. 
Burford  v.  Fergus,  29. 

v.  McCue,  196. 
Burgess  v.  Rice,  551. 

v.  Vreeland,  117. 

v.  Western  Union  Tel.  Co.,  231. 
Burghart  v.   Hall,   145. 
Burhans  v.  Van  Zandt,  504. 
Burke  v.  Adams,  121. 

v.  First  Nat.  Bank,  9. 

v.  Hammond,  346,  347. 

v.  L.  &  N.  R.  Co.,  275. 

v.  Miltenberger,  388. 

v.  Savage,  343. 

v.  Taylor,    181. 

v.  Turner,  550. 
Burlen  v.  Shannon,  507,  511. 
Burlington,  C.  R.  &  N.  R,   Co.  v. 

Dey,  438,  465. 
Burlington  &  M.  R.  Co.  v.  Westover, 

275. 

Burner  v.  Hevener,  488. 
Burnham  v.  Allen,  12,  16,  18,  128. 

v.  Ayer,  134. 

v.  Kempton,  365. 

v.  McQuesten,  363. 

v.  Webster,  399. 
Burns  v.  Burns,  243,  244. 

v.  C.  M.  &  St.  P.  R.  Co.,  282. 

v.  Gavin,   493. 

v.  Lane,  221. 

v.  Smith,  8. 

Burnside  v.  Donnon,  310. 
Burr  v.  Sim,  253,  257. 

v.  Willson,  24,  25. 
Burrowes  v.  Lock,  564. 
Burrows  v.  Delta  Transp.  Co.,  451. 

v.  Grover  Irr.  Co.,  567. 


TABLE  OF  CASES. 


583 


[REFERENCES  ARE  TO  PAGES.] 


v.  Klunk,  561. 

v.  State,  318. 

Burson  v.  Fire  Ass'n,  213. 
Burston  v.  Jackson,  540. 
Burt  v.  Advertiser  N.  Co.,  209. 

v.  Casey,  306,  309. 

v.  State,    21. 

v.  Sternburgh,  504,  506,  507. 

v.  Timmons,  175. 

v.  Winona  &  St.  P.  R.  Co.,  389. 
Burtners  v.  Keran,  522. 
Burton  v.  Blin,  36. 

v.  Burton,   489. 

v.  Cannon,  311. 

v.  Reeds,   522. 

v.  Scott,  333. 
Bury's  Case,  250. 
Bury  v.  Forsyth,  34. 

v.  Phillpot,  249,  250. 
Buschman  v.  Codd,  207. 
Bush  v.  Barnett,  52. 

v.  Barrett,  298. 

v.  Delano,  186. 

v.  Guion,  169. 

v.  Hanson,  103. 

v.  Lindsey,  99,  100,  102. 

v.  Person,  537. 

v.  Rogan,  539. 

v.  Tecumseh    Nat.    Bank,    458. 

v.  White,  550. 
Bussard  v.  Levering,  84. 
Bustard  v.  Gates,  95,  106. 
Buswell   v.   Fuller,   4,   17,   43,   282, 

284. 
Butcher  v.  Brownsville  Bank,  104, 

415. 
Butchers'  &  D.  Bank  v.  McDonald, 

545. 
Butler  v.  Allnutt,  93. 

v.  Ford,  80. 

v.  Mountgarret,  118. 

v.  Robinson,  400. 


v.  Thompson,   16,  43,  173,  175. 
Butler    University    v.    Scoonover, 

527. 

Butman  v.  Hobbs,   27. 
Butterfield  v.  Barber,  207. 
Button  v.  Hudson  R.  R.  Co.,  280. 
Byam  v.  Collins,  207,   208. 
Bybee    v.    Oregon    &    Cal.    R.    Co.. 

550. 

Byers  v.  Fowler,  102. 
Bynum   v.  Miller,   533. 

v.  Preston,   557,   565. 
Byrd  v.  Hudson,  208,  209. 

v.  Hughes,  182. 

v.  Tucker,  119. 
Byrket   v.   Monohon,   207. 
Byrne  v.  Boadle,  271. 

v.  Minneapolis  &  St.  L.  R.  Co., 
504. 

v.  Prather,   489. 

C. 

Cable  v.  Southern  R.  Co.,  8,  9,  277. 
Cadwallader  v.  West,  182. 
Caffrey  v.  Dudgeon,  537. 
Caha  v.  United  States,  402. 
Cahalan  v.  Monroe,  228,  229. 
Cahen  v.  Continental  L.   Ins.   Co., 

170. 

Cahill  v.  Cahill,  346,  347. 
Cain  v.  McCann,  345. 
Cairncross  v.  Lorimer,  564. 
Caldecott  v.  Johnson,  31. 
Calder  v.  Chapman,  523. 

v.  Rutherford,   32. 
Caldwell  v.  Gamble,  119. 

v.  Hall,  304,  320. 

v.  New  Jersey  Steamboat  Co., 

16,  18. 

Calhoun  v.  Ross,  409. 
Calkins  v.  Copley,  526,  529. 

v.  State,  111,  167. 
Callahan  v.   Bank  of  Ky.,   322. 


584 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  PAGES.] 


v.  First  Nat.  Bank,  322. 
Callan  v.  Gaylord,  84. 

v.  McDaniel,  474. 
Callen  v.  Ellison,  100,  106. 
Callsen  v.  Hope,  418. 
Calwell's  Ex'r  v.  Prindle's  Adm'r, 

307,  308. 

Cambrelleng  v.  Purton,  260. 
Camden  v.  Belgrade,  242. 
Camden  &  A.  R.  Co.  v.  May's  L.  & 

E.  H.  C.  R.  Co.,  547. 
Cameron  v.  Blackman,  404. 

v.  Cameron,  491. 

v.  Lightfoot,   --0. 

v.  Rich,    147,    290. 

v.  State,   243. 
Camp  v.  Land,  545. 
Campbell  v.  Butts,  513. 

v.  Campbell,    237,   241,   242. 

v.  Carruth,   120,   528. 

v.  Consalus,  511. 

v.  Hall,  500. 

v.  Laclede  Gas  Light  Co.,  39. 

v.  Manufacturers'    Nat.    Bank, 
84. 

v.  North  Eastern  Mut.  L.  Ins. 
Co.,   172. 

v.  Reed,    300. 

v.  Smith,  354,  358. 

v.  State,    49,    53,    368. 

v.  Wallace,  194. 

v.  West,  385. 

v.  Wood,  402. 
Campion  v.  Kille,  413. 
Canandargua  Academy  v.  McKech- 

nie,  112. 

Candrian  v.  Miller,  208. 
Cann  v.  Cann,  220. 
Cannell  v.  Curtis,  82. 
Canning  v.  Owen,  154. 
Cannon  v.  Brush  Elec.  Co.,  172. 

v.  Cannon,  249,  250. 

v.  Cooper,  107. 


v.  Lindsey,  212. 

v.  Stockmon,  516. 
Cannon  River  Mfrs'.  Ass'n  v.  Rog- 
ers,  494. 

Capen  v.  Woodrow,  30,  35,  39. 
Caperton  v.  Martin,  398,  426. 

v.  Schmidt,  506. 
Carbrey  v.  Willis,  515. 
Carey  v.  Reeves,  381,  425,  427,  445. 

v.  Sheets,  32. 

Cargile  v.  Wood,  236,   238,  239. 
Carleton  v.  Haywood,  190. 

v.  Washington  Ins.  Co.,  103. 
Carlisle   v.    Cooper,    354,    358,    359, 
361,  362,  363,  365. 

v.  Killebrew,   492. 
Carlton  v  Davis,  500. 

v.  People,  23,  24,  203. 
Carmel  Nat.  G.  &.  I.  Co.  v.  Small,  32. 
Carmichael  v.   Buck,  343. 

v.  Governor,  503. 
Game  v.  Litchfield,  166. 
Carnes  v.  Iowa  State  T.  M.  Ass'n, 

266. 

Carney  v.  Hennessey,  366. 
Carnwright  v.   Gray,   126. 
Carothers  v.  Alexander,  530. 
Carotti  v.  State,  150. 
Carpenter  v.  Buller,  525,  528,  544. 

v.  Carpenter,   335,  337. 

v.  Dexter,  416. 

v.  First  Nat.  Bank,  19. 

v.  Grand    Trunk   R.    Co.,    227, 
228. 

v.  New  York,  N.  H.  &  H.  R., 
290. 

v.  Thompson,  543. 

v.  Willey,  160. 

Carpenter's   Estate  v.   Bailey,   165. 
Carpentier  v.  Oakland,  100. 
Carr  v.  Clough,  154. 

v.  Griffin,  460. 

v.  State,  138,  139,  327. 


TABLE  OF  CASES. 


585 


[REFERENCES  ARE  TO  PAGES.] 


€arrico  v.  West  Va.  C.  &  P.  R.  Co., 

297. 

Carrier  v.  Cameron,  131. 
Carroll  v.  Bowie,  322. 

v.  Carroll,  151,  258. 

v.  Chicago  B.  &  N.  R.  Co.,  269, 
271,   298. 

v.  Hauss,  185. 

v.  Nodine,  496. 
Carson  v.  Broady,  551. 

v.  Carson,  521. 

v.  Dalton,  383. 

v.  New  Bellevue  Cem.  Co.,  531. 

v.  Prater,   344. 

v.  Smith,  418. 

v.  Stevens,  173. 
Carstens  v.  Hanselman,  193. 
Carter  v.  Bennett,  343. 

v.  Burley,  411. 

v.  Chambers,  160,  165. 

v.  Dixon,  186. 

v.  Gunnels,  24. 

v.  Howard,  193. 

v.  Jones,   107. 

v.  Kan.  City  C.  R.  Co.,  296. 

v.  Moulton,  120. 

v.  Tinicum    Fishing    Co.,    347, 

354 
Cartier   v.   Troy   Lumber   Co.,   53, 

165,  167,  170. 
Cartwright  v.  Bate,  192. 

v.  McGown,  115,  152,  237,  240, 

241,  257. 

Gary  v.  State,  386,  387,  444. 
Casco  Bank  v.  Keene,  553. 
Case  v.  Case,  242,  243,  244. 

v.  Chicago,  R.  I.  &  P.  R.  Co., 
268,  271. 

v.  Colston,  93. 

v.  Kelly,    401. 

v.  Mobile,    402. 

v.  Perew,  424,  445,  453. 


v.  Seass,  317. 
Casey  v.  Galli,  487. 

v.  McFalls,  507. 
Casey's  Lessee  v.  Inloes,  358,  360, 

361,  364,  516,  541. 
Cash  v.  Cash,  257. 

v.  Clark  County,  428. 
Casoni  v.  Jerome,  503. 
Caspar!  v.  First  German  Church, 

182. 
Cass  v.  Boston  &  L.  R.  Co.,  36,  283, 

284. 

Cassem  v.  Heustis,  182,  322. 
Cassidy  v.  Holbrook,  431. 

v.  Steuart,  389. 
Cassin  v.  Delany,  190. 
Casteel  v.  Casteel,  191. 
Castellaw  v.  Guilmartin,  502. 
Castello  v.  Landwehr,  399. 
Castleberry  v.  State,  369. 
Castor  v.  Bates,  504. 

v.  Davis,  115,  337. 
Caswell  v.  Jones,  172. 
Catasauqua  Mfg.  Co.  v.  Hopkins, 

25. 

Gates  v.  Loftus,  194. 
Catherwood  v.  Caslon,  244. 
Catlett  v.  Ry.  Co.,  8. 
Catlin  Coal  Co.  v.  Lloyd,  136,  137. 
Catron  v.  Nichols,  268. 
Caulkins  v.  Gas  Light  Co.,  215. 
Cavallaro  v.  Tex.  &  P.  R.  Co.,  230. 
Cavanaugh  v.  Buehler,  506,  508. 
Cavaness  v.  State,  23. 
Cavender  v.  Guild,  412. 
Cazassa  v.  Cazassa,  302. 
Cecil  v.  Cecil,  491. 

v.  Early,  526. 

Central  Baptist  Church  v.  Manches- 
ter, 494. 

Central   Branch   N.    P.   R.    Co.   T. 
Shoup,   472. 


586 


TABLE  OF  CASES. 


[REFERENCES  ABE  TO  PAGES.] 


Central    Bridge    Corp.    v.    Butler, 
12,  17. 

v.  Lowell,  472. 
Central  Pass.  R.  Co.  v.  Kuhn,  272, 

297. 

Central  R.  v.  Sanders,  297. 
Central  R.   Co.   v.   Hasselkus,   213, 
288. 

v.  Stoermer,  462. 

Central  R.  &  B.  Co.  v.  Kenney,  279, 
281. 

v.  Rylee,  142. 

v.  Small,  279. 
Central  S.  &  G.  Exch.  v.  Chicago 

Board  of  Trade,  166. 
Central   Transp.    Co.   v.   Pullman's 

P.  Car  Co.,  546,  547. 
Central  Trust  Co.  v.  Burton,  224. 

v.  Ohio   Cent.   R.   Co.,   548. 
Chaffee  v.  United  States,  166,  168. 
Chairman  of  Wash.  Co.  Ct.  v.  Har- 

ramond,  503. 
Chalmers  v.  Shackell,  26. 
Chamberlain,  In  re,  474. 
Chamberlain  v.  Gaillard,   511,  512. 

v.  Godfrey,  503. 

v.  Masterson,   286. 

v.  Meeder,  523,  538. 

v.  Premble,    496. 

v.  Spargur,  537. 

v.  Wood,   66. 
Chambers  v.   North  Western  Mut. 

Life  Ins.  Co.,  37. 
Champlin  v.  Laytin,  220. 
Chandler  v.  Barrett,  335,  336,  338. 

v.  Com.,  140. 

v.  Davis,  322. 

v.  Ford,  537. 

v.  Glover's   Adm'r,   143. 

v.  Grieves,  403,  404,  446. 
Chanoine  v.  Fowler,  411. 
Chapel  v.   Smith,    361. 


Chapman  v.  Abrahams,  538. 
v.  Brewer,  231 
v.  Colby,   413. 
v.  Cooper,  258. 
v.  New  Orleans  J.  &  G.  N.  R. 

Co.,   289. 

v.  Rochester,  560. 
v.  Rose,  212. 
•     v.  Wilber,  381. 
Chappel  v.  State,  204. 
Charkieh,  The,  445. 
Charles  v.  Charles,  260. 
Charles  Green's  Sons  v.  Salas,  146, 

152. 
Charles    River    Bridge   v.    Warren. 

Bridge,  110. 

Charleston  v.  Ryan,  538,  565. 
Charlotte  v.  Chouteau,  412. 
Charnley  v.  Shawano  W.  P.  &  R.  I. 

Co.,  354. 

Chase  v.  Cartright,  537. 
v.  McCay,   174. 
v.  Maine  Cent.  R.  Co.,  376. 
v.  People,  326,  328. 
v.  Surry,  84. 
v.  Tuttle,   112. 
Chasemore  v.  Richards,  365. 
Chattanooga,    R.    &    C.    R.    Co.    v. 

Owen,  449,  451. 
Chautauque   County   Bank   v.   Ris- 

ley,  114. 

Chauvin  v.  Wagner,  532. 
Cheesman  v.  Hart,  19. 
Cheever  v.  Perley,  310. 
Chehalis  County  v.  Hutcheson,  556. 
Cheltenham   S.   &  G.   Co.   v.  Gates 

Iron  Works,  317,  318. 
Cherokee  &  P.  C.  &  M.  Co.  v.  Wil- 
son, 423. 

Cherry  v.  Baker,  392. 
v.  Stein,    365. 


TABLE  OF  CASES. 


587 


[REFERENCES  ABE  TO  PAGES.] 


Chesapeake  &  O.  Canal  Co.  v.  Bal- 
timore &  O.  R.  Co.,  388,  396,  423, 

452. 

Chesapeake  &  O.  R.  Co.  v.  Lee,  268. 
Cheseldine's  Lessee  v.  Brewer,  236. 
Chesley  v.  Mississippi  &  R.  R.  Boom 

Co.,  283. 

Chesmer  v.  Noyes,  411. 
Chess  v.  Chess,  121. 
Chestnut  v.  Chestnut,  26. 
Chicago,  B.  '&  Q.  R.  Co.  v.  Hyatt, 

382. 

v.  State,  438. 

v.  Warner,  420,  432,  449,  452. 
Chicago  C.  R.  Co.  v.  McMahon,  155, 

160. 

v.  Tuohy,  141. 
Chicago  Gen.  St.  R.  Co.  v.  Capek, 

339. 
Chicago  G.  W.  R.  Co.  v.  Price,  9, 

278. 
Chicago,  R.  I.  &  P.  R.  Co.  v.  Spring 

Hill  Cemetery  Ass'n,  449. 
Chicago,  St.  L.  &  N.  O.  R.  Co.  v. 

Moss,  291. 

v.  Trotter,  299. 
Chicago,    St.    L.    &    P.    R.    Co.    v. 

Champion,  439. 

Chicago  St.  R.  Co.  v.  Rood,  297,  299. 
Chicago  W.  Div.  R,  Co.  v.  Ryan, 

141. 

Chicago  &  A.  R.  Co.  v.  Keegan,  385. 
Chicago  &  M.  R.  Co.  v.  Patchin, 

273. 
Chicago  &  N  W.  R.  Co.  v.  Calumet 

Stock  Farm,  213,  290. 
v.  Dickinson,  289. 
v.  Northern   Line   Packet    Co., 

496. 

Chteopee  v.  Whately,  152. 
Chicopee     Bank     v.     Philadelphia 

Bank,    284. 


Childers  v.  San  Jose  M.  P.  &  P.  Co., 

207. 
Childs  v.  McChesney,  95,  517,  540. 

v.  Merrill,   149. 
Chiles  v.  Conley's  Heirs,  348,  350. 

v.  Drake,  237. 
Chillingworth  v.   Eastern  Tinware 

Co.,  8,  146,  147. 
Chipman  v.  Peabody,  413. 
Chism  v.  Toomer,  131,  134. 
Chittenden  v.  Wurster,  93. 
Chitty  v.  Dendy,  390. 
Chloupek  v.  Perotka,  536. 
Chollar-Potosi  Min.  Co.  v.  Kennedy, 

354,  359,  364. 
Choppin  v.  Dauphin,  553. 
Chouteau  v.  Pierre,  417. 
Chouteau     Ins.     Co.     v.     Holmes' 

Adm'r,  113. 

Chrisman  v.  Chrisman,  332,  333. 
Chrisman's  Adm'x  v.  Harman,  498, 

513. 

Christ  Church  v.  Beach,  36. 
Christensen,  In  re,  99,  487. 
Christenson  v.  American  Exp.  Co., 

213. 

Christie  v.  Griggs,  298. 
Christophers  v.  Sparke,  307. 
Christy  v.  Pridgeon,  396. 
Chumasero  v.  Gilbert,  412. 
Church  v.  Chapin,  507. 
v.  Church,  159. 
v.  Gilman,  123. 
v.  Landers,  191. 
Cicotte  v.  Anciaux,  383. 
Cilley  v.  Cilley,  334. 
Cincinnati,  H.  &  D.  R.  Co.  v.  Mc- 

Mullen,   280,   412. 

Cincinnati,  H.  &  I.  R.  Co.  v.  But- 
ler, 280. 

v.  Clifford,  401. 


588 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  PAGES.] 


Cincinnati,   I.   St.   &  C.   R.   Co.   v. 

Howard,  280,  281. 
Cincinnati,  O.  &  F.  Co.  v.  National 

Lafayette  Bank,  319. 
Cincinnati    St.    R.    Co.    v.    Wright, 

142. 
Citizens'  Bank  v.  First  Nat.  Bank, 

562. 

Citizens'  Nat.'  Ba,nk  v.  Smith,  212. 
Citizens'  R.  T.  Co.  v.  Dew,  433,  450. 
City  Council  v.  Van  Roven,  190. 
City  Elec.  St.  R.  Co.  v.  First  Nat. 

Exch.  Bank,  404. 

City  Nat.  Bank  v.  Kuswormer,  558. 
City  &  S.  R.  v.  Findley,  298. 
Claffin  v.  Fletcher,  499. 
Claflin  v.  Boston  &  A.  R.  Co.,  252, 
350,  528. 

v.  Meyer,  284. 
Clapp  v.  Cedar  County,  127. 
Clara,  The,  402. 
Clare  v.  People,  24. 
Clarendon  Land  I.  &  A.  Co.  v.  Mc- 
Clelland, 38. 
Claridge  v.  Klett,  118. 
Clarion  Bank  v.  Jones,  206. 
€lark  v.  Akers,  122. 

v.  Baker,  517,  519. 

v.  Barnwell,    290,    292. 

v.  Clement,  306,  312. 

v.  Depew,  174. 

v.  Deveaux,  181. 

v.  Dillman,  566,  568. 

v.  Eckroyd,  559. 

v.  Eckstein,   134. 

v.  Faunce,  349. 

v.  Fisher,   336. 

v.  Hills,  16,  18. 

v.  Irvin,  492. 

v.  Janesville,  401. 

v.  Jones,    109,    111. 

v.  Miller,  43. 


v.  Morrison,   394. 

v.  Mutual  R.  F.  L.  Ass'n,  465. 

v.  Parsons,  566. 

v.  Patterson,  340. 

v.  Pease,  130. 

v.  People,  83. 

v.  St.    Louis    K.    C.    &    N.    R. 
Co.,  293. 

v.  Schneider,  127. 

v.  Simmons,  322. 

v.  Slaughter,   518. 

v.  Spence,  283,  284. 

v.  State,  372. 

v.  Thompson,  106. 

v.  Wolf,  497. 
Clark's   Ex'rs  v.   Carrington,  495. 

v.  Hopkins,  308. 

v.  Van  Riemsdyk,  466. 
Clark's  Heirs  v.  Ellis,  336,  338. 
Clarke  v.  Cartwright,  335,  337. 

v.  Butcher,  217. 

v.  Fitch,  430. 

v.  Palmer,   565. 

v.  Perry,    491. 

v.  State,   200. 

v.  White,  34. 

Clarke's  Ex'rs  v.  Canfleld,  260. 
Clausen  v.   Head,  497. 
Clawson  v.  State,  22,  327. 
Clay  v.  St.  Albans,  346. 
Clayton  v.  May,  382. 

v.  State,  469. 

v.  Wardell,   238,  239,   242,   244: 
Cleaver  v.  Traders'  Ins.  Co.,  212. 
Clem  v.  Newcastle  &  D.  R.  Co.,  220. 
Clemens  v.  Hannibal  &  St.  J.  R.  Co., 

275. 
Clements  v.  Collins,  497. 

v.  Hays,  148. 

v.  Louisiana   Elec.    Light   Co., 
267,  270,  279. 

v.  Macheboeuf,  93. 


TABLE  OF  CASES. 


589 


[REFERENCES  ARE  TO  PAGES.] 


v.  Moore,  33,  34. 
Clendenin  v.  Southerland,  127. 
Cleveland  v.  Grand  Trunk  R.  Co., 

275. 
Cleveland  C.  C.  R.  Co.  v.  Walwrath, 

298. 

Cleveland,  C.  C.  &  I.  R.  Co.  v.  New- 
ell, 297,  298. 

Cleveland,  C.  C.  &  St.  L.  R.  Co.  v. 
Huddleston,  267,  3G1,  363,  366. 

v.  Jenkins,  437. 
Cleveland  T.  &  V.  R.  Co.  v.  Marsh, 

268. 
Cleveland  V.  C.  &  St.  L.  R.  Co.  v. 

Berry,  269. 
Cleveland   &  P.   R.   Co.   v.   Rowan, 

278,  281. 
Clifton  v.  Lilley,  340. 

v.  United  States,  159. 
Clifton  Iron  Co.  v.  Dye,  405. 
Clopton  v.  Clopton,  488. 

v.  Cogart,  207. 

Close  v.  Glenwood  Cemetery,  545. 
Cloud  v.  Wiley,  489. 
Cluff  v.  Mutual  B.  L.  Ins.  Co.,  217, 

227,  492. 

Clunnes  v.  Pezzey,  42. 
Clute  v.  Wiggins,  286. 
Coal  Run  Coal  Co.  v.  Jones,  151. 
Coates  v.  Missouri,  K.  &  T.  R.  Co., 

275,  276. 

'Cobb  v.   Davenport,   354,   359,   363, 
366. 

v.  Haynes,  194. 

v.  Oldfleld,  523,  533,  534,  550. 
v.  Wallace,  154. 
Cobbett  v.  Brock,  180. 
Cobleigh  v.  Young,  113. 
Cochran  v.  Nebeker,  561. 
v.  Thomas,  100. 
v.  Ward,   414. 


Cochran's  Will,  338. 
Cockin's  Case,  371. 
Cockrill  v.  Hutchinson,  554. 
Coffee  v.  Neely,  413,  415. 

v.  State,  200. 

v.  United   States,  492. 
Coffin  v.  Coffin,  186. 

v.  Grand  Rapids  Hydraulic  Co., 
36. 

v.  United  States,  47. 
Coffman's  Will,  In  re,  333. 
Cohen  v.  Cohen's  Ex'rs,  303. 
Coit  v.  Churchill,  25. 

v.  Haven,  100,  101,  105. 

v.  Millikin,  410. 

v.  Tracy,  504. 
Cole  v.  Cole,  151. 

v.  Favorite,  493. 

v.  Hills,   133,   134,   137. 

v.  Lake  Shore  &  M.  S.  R.  Co., 
155,   162,   164,   168. 

v.  Raymond,   538. 

v.  Saxby,  143. 

v.  Tyler,  174. 
Colee  v.  Colee,  121,  124. 
Coleman  v.  Bresnaham,  519,  534. 

v.  Dobbins,   389. 

v.  Lane,  305. 

Coler  v.  Dwight  School  Tp.,  527. 
Collar  v.  Patterson,  303. 
College   of   St.   Mary   Magdalen   v. 

Attorney  General,  83. 
Collier  v.   Baptist  Education   Soc., 
401. 

v.  Nokes,  424. 

v.  State,   200. 
Collins  v.  Ball,  133. 

v.  Bennett,  284. 

v.  Collins,   241. 

v.  Dispatch  Pub.  Co.,  208. 

v.  Gilbert,  126. 

v.  Mitchell,  523,  526. 


590 


TABLE  OF  CASES. 


[EEFEKENCES  ARE  TO  PAGES.] 


v.  State,  390. 

v.  Valleau,  117. 

v.  Voorhees,  239,  241. 
Collyer  v.  Collyer,  303. 
Cblman  v.  Anderson,  95. 
Colorado    C.    &    I.    Co.    v.    United 

States,  32. 

Colsell  v.  Budd,  307. ' 
Colton  v.  Cleveland  &  P.  R.  Co.,  292. 

v.  Onderdonk,  499. 
Columb  v.  Webster  Mfg.  Co.,  509. 
Columbia  v.  Cornell,  561. 
Colvin  v.  Procurator-General,  265. 

v.  Warford,  349,  350. 
Combs  v.  Smith,  39. 
Comer  v.  Comer,  341,  343. 

v.  Consol.  C.  &  M.  Co.,  279. 
Commercial  Bank  v.  Burgwyn,  127, 

129,  341. 
Commercial  &  R.  Bank  v.  Lum,  134, 

137. 

Commission  Co.  v.  Carroll,  229. 
Commonwealth    v.    Andres*    Heirs, 
541. 

v.  Babcock,  45. 

v.  Bagley,  217. 

v.  Barry,  191. 

v.  Bassford,  224. 

v.  Bell,  372. 

v.  Bezek,  22,  327. 

v.  Blanchette,  339. 

v.  Blanding,    208. 

v.  Blood,  105. 

v.  Bolkom,  108. 

v.  Boyer,  151. 

v.  Briant,  233. 

v.  Burk,   188,   189. 

v.  Butler,   188. 

v.  Caponi,  258. 

v.  Carroll,  191. 

v.  Choate,  203. 

v.  Clark,  161. 


v.  Costello,  164. 

v.  Crane,  402. 

v.  Curran,  44. 

v.  Daily,  171. 

v.  Daley,  187,  188. 

v.  Dean,  44. 

v.  Desmond,  381,  389. 

v.  Drew,  200. 

v.  Drum,  199,  200. 

v.  Dunlop,    385,    388. 

v.  Eagan,    187. 

v.  Eddy,  13,  22,  326,  328. 

v.  Fay,  103. 

v.  Feeney,  188. 

v.  Feidman,  492. 

v.  Fitzpatrick,  382,  393. 

v.  Flaherty,  188. 

v.  Gannon,  190. 

v.  Gerade,  16,  22,  50,  198,  329. 

v.  Goodwin,  24. 

v.  Gormley,  187. 

v.  Graham,  225. 

v.  Green,  140. 

v.  Hall,  171. 

v.  Hardiman,  8. 

v.  Harman,  252. 

v.  Haskell,  167. 

v.  Hawkins,  202. 

v.  Heath,  23,  329. 

v.  Hill,  188,  189. 

v.  Holt,  243. 

v.  Hopkins,  187. 

v.  Jackson,  244. 

v.  Jeffries,  87,  88. 

v.  Kane,  81. 

v.  Kennedy,  191. 

v.  Kenney,  225,  227. 

v.  Kimball,  44. 

v.  King,   421,  428. 

v.  Leo,  44. 

v.  Littlejohn,  244. 

v.  Locke,  45,  155,  171. 


TABLE  OP  CASES. 


591 


[REFERENCES  ARE  TO  PAGES.] 


v.  McCabe,  161,  165. 
v.  McCue,  81. 
v.  McGorty,  369. 
v.  McGrath,  252,  258. 
v.  McHugh,  15 /,  164. 
v.  McKie,  204. 
v.  McMahon,  156,  160. 
v.  McMurray,  469. 
v.  Marzynski,  434,  455,  456. 
v.  Mead,  138. 
v.  Milliard,  369. 
v.  Moore,  143,  187,  188. 
v.  Moorehead,  356. 
v.  Mullen,  167. 
v.  Munsey,   188. 
v.  Munson,  143. 
v.  Murphy,  188. 
v.  Neal,  187. 
v.  Peckham,  435,  449. 
v.  Pomeroy,    337. 
v.  Pratt,   188,   189. 
v.  Price,  373. 
v.  Rafferty,  44. 
v.  Randall,  368. 
v.  Reyburg,  435. 
v.  Rhoads,  504. 
v.  Rogers,  22,  328. 
v.  Ryan,  165. 
v.  Sacket,  160. 
v.  Samuel,  32. 
v.  Shepherd,  248,  249. 
v.  Snelling,  208. 
v.  Springfield,  385. 
v.  Stump,  236,  238. 
v.  Sullivan,   171. 
v.  Talbot,  370. 
v.  Thompson,  254,  260,  262. 
v.  Thurlow,  44. 
v.  Towle,  44. 
v.  Trimmer,  187. 
AT.  Tueivnon,  373. 


v.  Tuttle,  44. 
v.  Wallace,  171. 
v.  Weber,  163. 

v.  Webster,   23,   24,   160,   161, 
164, '166,    171,    199,    200, 
201,   202. 
v.  Welch,  188. 
v.  Wheeler,  382,  383. 
v.  Wood,  188,  191. 
v.  York,   10,  199,  200. 
Com.  M.  F.  Ins.  Co.  v.  Hayden,  497. 
Compagnie     Francaise     v.     State 

Board  of  Health,  375,  420. 
Companies  Acts,  In  re,  541. 
Company    of    Stationers    v.    Sey- 
mour, 423. 
Comptoir  D'Escomr/ca  de  Paris  v. 

Dresbach,   318,   322. 
Comstock   v.    Hadlyme   EC.    Soc., 
19,  331,  334. 

v.  Smith,    515,    519,   520,    533. 
Conant  v.  Newton,  537. 
Condit  v.  Blackwell,  413. 
Condran  v.  Chicago,  M.  &  St.  P. 

R.  Co.,  438. 
Cone  v.  Brown,  342,  343. 

v.  Dunham,   255. 

Conger  v.  Chilcote,  493. 

v.  Crabtree,  130. 

v.  Weaver,  425. 

Conkhite    v.    Traveler's    Ins.    Co., 

266. 

Conlen  v.  Board  of  Sup'rs,  400. 
Conley  v.  Winsor,  127,  129. 
Connecticut   Mut.   L«.   Ins.    Co.   v. 

Smith,  113,  162. 
Connell  v.  McLoughlin,  169. 
Connelly  v.  McKean,  323. 
Connelly's  Case,  187. 
Conner  v.  Fleshman.  133. 
v.  State,  107,  199. 
v.  Woodflll.   359,  363. 


592 


TABLE  OF  CASES. 


[REFERENCES  ABE  TO  PAGES.] 


Connolly's  Case,  188. 
Connor  v.  Eddy,  543. 
v.  McMurray,  537. 
v.  Stanley,   182. 
v.  Sullivan,   361. 
v.  Trawick's  Adm'r,  225,  229. 
Conolly  v.  Riley,  81. 
Conrad  v.  Fisher,  413. 
Conroy    r.   Pittsburgh    Time,   206, 

208. 
Consolidated   H.  M.  L.   Mach.   Co. 

v.   Bradley,   494. 
Consolidated  Rep.  Mt.  Min.  Co.  v. 

Lebanon  Min.  Co.,  519,  530. 
Consolidated      Traction      Co.      v. 

Elizabeth,  96. 
Constantinople    &    A.    Hotel    Co., 

In  re,  87. 

Contee  v.  Pratt,  392. 
Continental  Ins.  Co.  v.  Delpeuch. 
266. 

v.  Jachnichen,  27. 
Continental  L.  Ins.  Co.  v.  Rogers, 

37. 

Continental  Nat.  Bank  v.  McGeoch, 
413. 

v.  Nat.  Bank,  553,  565. 
Conway  v.  Case,  323. 

v.  Reed,   141. 
Conwell  v.  Pumphrey,  341. 

v.  Watkins,  89. 
Conyers  v.  Scott,  363. 

v.  State,   32,   45. 
Coogler  v.  Rhodes,  208. 
Cook  v.  Caswell,  263. 
v.  Cook,  39,  40. 
v.  Gammon,  366. 
v.  Noble,  126. 
v.  Parham,    501. 
v.  Patterson,  343. 
v.  State,  243. 
v.  Toumbs,    539. 


v.  Walling,   554,   556. 
Cooke,  In  re,  256. 
Cooke   v.   Eshelby,   567. 

v.  Lamotte,  179,  180. 

v.  Nathan,  221. 

v.  Soltan,  348. 

v.  Tallman,    441. 

v.  Wilson,    381. 
Cooley  v.  Foltz,  166. 
Coolidge  v.  Learned,  358,  359. 
Cooper  v.  Cooper,  36,  257,  303. 

v.  Dedrick,  150. 

v.  Georgia    Pac.    R.    Co.,    288, 
293,  294. 

v.  Gibbons,   170. 

v.  Granberry,  89,  95. 

v.  Great  Falls  Cotton  Co.,  567. 

v.  Hunter,  220. 

v.  Massachusetts    M.    L.    Ina. 
Co.,  330. 

v.  Phibbs,   219. 

v.  Reaney,  231. 

v.  State,  368. 

v.  Sunderland,  101,  108. 

v.  Tyler,  33. 

v.  Watson,   529,    532. 
Cope  v.  Cope,  249,  250. 

v.  Humphreys,  54. 
Copeland  v.  Clark,  321. 
Coper  v.  Roe,  253,  255. 
Copes  v.  Pearce,  236,  238. 
Copp  v.  Lamb,  113. 
Coppin  v.  Greenlees  &  R.  Co.,  546. 
Corbett  v.  Brown,  558. 
Corbishley's  Trusts,  In  re,  259. 
Corbitt  v.  Timmerman,  100. 
Corbley  v.  Wilson,  26,  492. 
Corcoran  v.  Boston  &  A.  R.  Co., 
280. 

v.  Chesapeake  &  O.  Canal  Co-. 
499. 

v.  Doll,  135. 


TABLE  OF  CASES. 


593 


[REFERENCES  ARE  TO  PAGES.] 


Corley  v.  Holloway,  260. 
Cornelison  v.  Foushee,  392. 
Corniff  v.  Cook,  38. 
Corning  v.  Gould,  354,  359. 
Cornish  v.  Abington,  564. 
Cornwell  Mfg.   Co.  v.   Swift,  362. 
Corrigan  v.  Pironi,  182. 
Corser  v.  Paul,  567. 
Cort  v.  Delaware  Ins.  Co.,  147. 
Cory  v.  Boylston  F.  &  M.  Ins.  Co., 

85. 

Cosgrove  v.  Fanebust,  131,  133. 
Coskery  v.  Wood,  104,  105. 
Costigan  v.  Gould,  118. 

v.  Mowhawk  &  H.  R.  Co.,  37. 
Costill  v.  Hill,  235,  239,  243. 
Cosulich  v.  Standard  Oil  Co.,  268, 

270,  272. 
Cote  v.  New  York  N.  H.  &  H.  R. 

Co.,  294. 

Cottle  v.  Payne,  307. 
Cotton  v.  State,  167. 
Coudy  v.  St.  Louis  I.  M.  &  S.  R. 

Co.,  298. 

Coughran  v.  Oilman,  104. 
Coughtry    v.    Williamette    St.    R. 

Co.,  280,  281. 
Coulson   v.    Allison,   180. 

v.  Walton,  136. 
Coulter  v.  Davis,   514. 

v.  Stuart,   26. 

County  Com'rs  v.  Nelson,  555. 
County  Joannes  v.  Bennett,  162. 
Courcamp  v.  Weber,  132,  137. 
Courcier  v.   Graham,   347. 
Courtney    v.    Staudenmeyer,    312, 

314. 
Coventry  v.  Great  Eastern  R.  Co., 

563. 
Cover  v.  Manaway,  118. 

v.  Myers,   129. 
Covert  v.   Gray,  153. 


Covington  v.  Hoadley,  399. 
Covington     Drawbridge     Co.      v. 

Shepherd,  401. 
Cowan  v.  Musgrave,  303. 
Cowee  v.  Cornell,  179. 
Cowie  v.  Fisher,  310. 
Cowley  v.  People,  429. 
Cowman  v.  Rogers,  263,  264. 
Cowper  v.  Cowper,  156. 
Cox  v.  Brain,  471. 

v  Brower,  306,  314. 

v.  Central  St.  R.,  291. 

v.  Central  Vt.  R.,  213. 

v.  Ellsworth,  257. 

v.  Fay,  343. 

v.  Forest,  362. 

v.  Jagger,  486. 

v.  Matthews.  105. 

v.  Morrow,  227,  231,  412. 

v.  Palmer,  135. 

v.  Royal  Tribe,  9,  266. 

v.  St.  Louis,  401,  403. 

v.  Stern,  387. 

v.  Wilder,  539. 
Coxe  v.  Deringer,  90. 

v.  Gulick,  465. 
Coye  v.  Leach,  263,  265. 
Coykendall    v.    Eaton,   165. 
Coyle  v.  Com.,  22,  23. 
Cozzens  v.  Gillespie,  195. 
Crabtree  v.  Atchison,  19. 

v.  Rowand,  321. 
Craft  v.  Schlag,  466. 
Crafts  v.  City  of  Boston,  280. 

v.  Clark,  231. 
Craig  v.  Proctor,  46,  128. 

v.  Ward,  501. 
Grain  v.  Wright,  124. 
Crake  v.  Crake,  228. 
Cramer  v.  Burlington,  166. 

v.  Crumbaugh,  215. 
Crampton  v.  Prince,  149. 


594 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  PAGES.] 


Crandall  v.  Gallup,  502. 

v.  Great  Northern  R.  Co.,  226, 

413. 

v.    Sterling  G.  Min.   Co.,  416. 
Crane  v.  Morris'  Lessee,  53,  523, 

534. 
Crary  v.  Lehigh  Valley  R.  Co.,  214, 

291,   293. 

Crawcour  v.  Salter,  422. 
Crawford  v.  Beard,  174. 
v.  Elliott,  253. 

v.  Planters'  &   M.  Bank,  400. 
v.  Spencer,  234. 
v.  Southern  R.  Co.,  293. 
v.  State,  164. 
Crawford  Co.  v.  Hall,  426. 
Crawfordsville  v.  Braden,  440. 
Creamer  v.  Mcllvain,  269. 
Credit  Co.  v.  Howe  Mach.  Co.,  548. 
Creed,  in  re,  254. 

Creed  v.  Lancaster  Bank,  301,  302. 
Crenshaw  v.  Julian,  556. 
Crescent  City  Ice  Co.  v.  Ermann, 

158. 

Cressey  v.  Tatom,  225. 
Crew  v.  Pratt,  107. 
Cribbs  v.  Adams,  226. 
Cripsell  v.  Dubois,  182. 
Crisp  v.  Anderson,  159,  168. 
Criss  v.  Criss,  306,  312,  313. 
Critten    v.    Chemical    Nat.    Bank, 

283. 

Crittenden  v.  French,  234. 
Crockett  v.  Morrison,  345. 
Croft  v.  White,  136. 
Crompton  v.  Pratt,  324. 
Cromwell  v.  Sac  County,  480,  504, 

505,  506,  509. 
Cronkhite  v.   Travelers'   Ins.   Co., 

267. 

Crocker  v.  Crooker,  313. 
v.  Pendleton,  349. 


Cross  v.  Bell,  170. 

v.  Bell's  Adm'rs,  158. 

v.  Cross,  26,  245,  248,  249,  250, 
251. 

v.  Lewis,   360. 

v.  Lake  Shore  &  M.  S.  R.  Co.: 
164. 

v.  Martin,  194,  196. 

v.  Robinson,    515. 

v.  Sabin,  426,  427. 

v.  Weare  Com.  Co.,  555,  558. 

v.  White,  504. 
Croswell  v.  Labree,  137. 
Crouch   v.   Hall,   226. 
Croudson  v.  Leonard,  411. 
Grouse  v.  Holman,  335,  337. 
Crowford  v.  Blisse,  452. 
Crowninshield    v.     Crowninshield, 

12,  13,  17,  32,  332,  334. 
Croxton  v.  May,  299. 
Crozier  v.  Gano,  237. 
Cruger  v.  Armstrong,  127,  341. 
Cruikshank  v.  Gordon,  160. 
Crumb  v.  Wright,  550. 
Culbertson   v.    Milhollin,   91. 
Culmer  v.  Wilson,  190. 
Gulp  v.  Wilson,  301. 
Culver  v.  Marks,  67. 
Culverhouse  v.  Worts,  425. 
Cumberland  C.  &  I.  Co.  v.  Parish, 

182. 

Cumberledge  v.  Cole,  343. 
'Cumins  v.  Wood,  283,  285. 
Cummings    v.    Nat.    Furnace   Co., 
269. 

v.  Powell,  516,  532. 

v.  Stone,  428. 

v.  Thompson,  127,  129. 
Cummisky  v.  Cummisky,  107. 
Cunningham  v.  Ashley,  502. 

v.  Cunningham,  237,  239. 

v.  Foster,   512. 


TABLE  OF  CASES. 


595 


[REFEBENCES  ABE  TO  PAGES.] 


v.  Harris,  500. 

v.  Irwin,  192. 

v.  Shanklin,  489. 

v.  Spokane  Hydraulic  Co.,  100. 

v.  State,  23,  326,  328. 
Cunningham's  Appeal,  181. 
Curd  v.  Dodds,  189. 
Curran  v.   Warren   C.    &   M.   Co., 

268. 

Currier  v.  Gale,  148,  346. 
Curry  v.  Mack,  503. 
Curtin  v.  Patton,  222. 
Curtis  v.  Gibbs,  415. 

v.  Gokey,  234. 

v.  Leavitt,  216. 

v.  March,  424. 

v.  Rickards,  120. 

v.  Rochester  &  S.  R.  Co.,  297. 
Curtis  &  Co.  Mfg.  Co.  v.  Douglass, 

158. 

Gushing  v.  Edwards,  501. 
Cushman    v.    Illinois    Starch,   Co., 

112. 

Cuthbert  v.  Furrier,  263. 
Cuthrell  v.  Hawkins,  515,  518. 
Cutler  v.  Bonney,  286. 

v.  Cutler,  134,  472. 

v.  Dickinson,  526. 

v.  Wright,  229,  233,  413. 
Cutliff  v.  Boyd,  302. 
Cutter  v.  Butler,  511. 

v.  Caruthers,  392. 

v.  State,  218. 
Cuyler  v.  Ferrill,  426. 

D. 

Daby  v.  Ericcson,  194,  307,  309. 
Dacey  v.  People,  23,  326,  328. 
Dade  v.  Aetna  Ins.  Co.,  84. 
Dages  v.  Brake,  431. 
Daggers  v.  Van  Dyck,  451. 
Daggett  v.  Colgan,  395,  420. 
v.  Tallman,  306,  314. 


Dahlman  v.  Hammel,  20,  30. 
Dailey  v.  Preferred  Masonic  Mut. 

Ace.  Ass'n,  438. 
Dainese  v.  Hale,  412. 
Dale  v.  Dale,  184. 
Dallas  &  W.  R.  Co.  v.  Spicker,  278. 
Dalrymple  v.  Dalrymple,  414. 
Dalston,  v.   Coatsworth,  158,   169. 
Dalton  v.  Angus,  354. 
Dana  v.  Kemble,  88. 
Danby  v.  Danby,  256. 
Daniel  v.  Bellamy,  391. 

v.  North;  366. 
Daniels  v.  Barney,  223. 
v.  Clegg,  280. 
v.  Hamilton,  152. 
v.  Hudson  River  F.  Ins.  Co., 

38. 
Dannelli  v.  Dannelli's  Adm'r,  227, 

236,  238. 
Danner  v.  South  Car.  R.  Co.,  161, 

273. 
Danville  &  W.  L.  P.  Co.  v.  State. 

400. 

Darlington  v.  Painter,  363. 
Darlington's  Appeal,  180. 
Dashiel  v.  Collier,  533. 

v.  Harshman,  211,  221. 
Daub  v.  Englebach,  467. 
Davenport  v.  Barnett,  498. 

v.  Muir,  496. 
Davey  v.  London  &  S.  W.  R.  Co., 

8,  281. 

David  v.  Park,  566. 
Davidson  v.  Jennings,  565. 
v.  Kimpton,  299. 
v.  New  Orleans,  504. 
v.  Nicholson,  39. 
v.  Peticolas,  390. 
Davie  v.  Briggs,  253,  256,  259. 

v.  Jones,  159,  170. 
Davies  v.  Davles,  303. 

v.  Eastern  Steamboat  Co.,  83. 


596 


TABLE  OF  CASES. 


[REFERENCES  ABE  TO  PAGES.] 


v.  Flewellen,  474. 
Davis  v.  Agnew,  535. 

v.  Bartlett,  127,  129,  130. 

v.  Bank  of  England,  565. 

v.  Caldwell,    145. 

v.  Calvert,  172. 

v.  Carlisle,  137. 

v.  Central  Vt.  R.  Co.,  213. 

v.  Davis,  125. 

v.  Fish,  67. 

v.  Fuller,  131. 

v.  Fulton  Bank,  401. 

v.  Garrett,  124. 

v.  Havard,  486. 

v.  Hudson,  102. 

v.  Jenney,   131. 

v.  Kobe,  405. 

v.  Marxhausen,  207. 

v.  McEnaney,  394. 

v.  Montgomery,    175. 

v.  Old  Colony  R.  Co.,  546,  547. 

v.  Petrinovich,  420. 

v.  Smith,  494. 

v.  Standish,  392,  432. 

v.  State,  187,  369. 

v.  Talcott,  513. 

v.  Tyler,  544. 

v.  U.  S.,  23,  325,  326,  328. 

v.  Williams,  551. 
Davis'  Estate,  In  re,  318. 
Davison  v.  Gent,  345. 
Davock  v.  Moore,  437. 
Dawkins  v.  Smithwick,  424. 
Dawson  v.  Chamney,  285. 

v.  Dawson,  458. 

v.  Mayall,  550. 

v.  St.  Paul  F.  Ins.  Co.,  526. 

v.  State,   369. 
Day  v.  Alverson,  345. 

v.  Caton,  303. 

v.  Davis,   528. 

v.  De  Jonge,  489. 

v.  Griffith,  121. 


v.(  Lamb,  118. 

v.  Raguet,  37. 

v.  Ridley,   289. 

v.  Spiral   S.  B.  Co.,  546,  547, 
548. 

v.  Williams,  349. 
Deakin  v.  Underwood,  37. 
Dealey  v.  Muller,  142. 
Dean  v.  Com.,  160. 

v.  Crall,  554. 

v.    Dean's    Heirs,    332. 

v.  Negley,  185. 

v.  State,  248. 
Deaton  v.  Munroe,  179. 
De  Baker  v.  Southern  Cal.  R.  Co., 

375,  385,  428. 

De  Berry  v.   Wheeler,   565,   568. 
De  Camp  v.  Hamma,  211. 
Decell  v.  Lewenthal,  144. 
De  Celis's  Adm'r  v.  U.  S.,  425. 
Decker  v.  Livingston,  324. 

v.  Somerset  Mut.  F.  Ins.  Co., 

27,  28. 
Dederichs   v.    Salt   Lake   City   R. 

Co.,  430. 

Deegan  v.  Deegan,  100. 
Deere  v.  Nelson,  121. 
Defreese  v.  Lak,e,  125. 
De  Freest  v.  Bloomingdale,  321. 
De  Frieze  v.  Quint,  90,  258,  516. 
De  Groff  v.  American  Linen  Thread 

Co.,  113. 
Deikman  v.  Morgan's  L.  &  T.  R. 

&  S.   S.  Co.,  272. 
Deininger  v.  McConnel,  118. 
Dejarnette  v.  Com.,  22,  329. 

v.  McDaniel,  84,  86. 
De  la  Chaumette  v.  Bank  of  Eng- 
land, 130. 
Delafield  v.  Hand,  411. 

v.  Parish,  215,  332,  334. 
De  la  Grange  v.   S.   W.   Tel.   Co. 
287. 


TABLE  OF  CASES. 


597 


[REFERENCES  ARE  TO  PAGES.] 


Delahoussaye  v.  Judice,  359,  361. 
De  Land,  v.  Dlxon  Nat.  Bank,  304 
Delaney  v.  Dutcher,  545. 
Delano  v.  Bartlett,  13,  17,  128. 
Delaware   County   T.,   S.   D.  &  T. 

Ins.  Co.  v.  Haser,  317. 
Delaware,  L.  &  W.  R.  Co.  v.  Na- 

pheys,  299. 

Demuth  v.  Amweg,  364. 
Den  v.  Applegate,  416. 

v.  Banta,  140. 

v.  Chaffin,  528. 

v.  Clark,  336. 

v.  Demarest,  539. 

v.    Gaston,    108. 

v.  McCann,  345. 

v.  Newsom,  531. 

v.  Parker,  261. 
Denmead  v.  Maack,  387,  411. 
Denner  Fire  Ins.  Co.  v.   McClel- 
land, 547. 

Dennie  v.  Smith,  503. 
Denning  v.  Corwin,  101. 
Dennis  v.   Union  M.   L.  Ins.  Co., 

266. 

Dennison  v.  Page,  246,  248,  249. 
Denniston  v.  McKeen,  308. 
Denny,  In  re,  408. 
Denny  v.   Dana,  206. 

v.  State,  381,  385,  391,  407. 

v.  Williams,  8. 
Dent  v.  Bennett,  182. 

v.  Chicago,  R.  I.  &  P.  R.  Co., 
284. 

v.  Chiles,  154. 

v.  King,  498. 
Denton  v.  Perry,  125. 
Denver  Consol.  Elec.  Co.  v.  Simp- 
son, 270. 

Denver  Fire-Brick  Co.  v.  Platt,  34. 
Denver  S.  P.  &  P.  R.  Co.  v.  Wood- 
ward. 297. 


De  Rochemont  v.  B.  &  M.  R.,  515. 
De  Ruiter  v.  De  Ruiter,  176,  211. 
Deshon  v.  Merchants'  Ins.  Co.,  36. 
De  Sobry  v.  De  Laistre,  224. 
Despatch  Line  of  Packets  v.  Bel- 
lamy Mfg.  Co.,  113. 
Despau  v.  Swindler,  394. 
Desverges  v.  Desverges,  347. 
De   Thoren   v.   Attorney   General, 

237,  238,  241. 
Detroit  W.  T.  &  J.  R.  Co.  v.  Crane, 

447. 

Detroit  &  M.  R.  Co.  v.  Van  Stein- 
burg,  279,  280. 
Devereux  v.  McMahon,  120. 
Devlin  v.  Chamblin,  318,  319,  320. 

v.  Clark,  130. 

v.  Com.,  263. 
De  Votie  v.  McGerr,  554. 
Deweea  v.  Colo.  County,  386. 
Dewey  v.  Fields,  550. 

v.  St.  Albans  R.  Co.,  507. 
Dewhurst  v.   Wright,  530. 
Dexter  v.  Cranston,  384. 

v.  Tree,  363. 
Deybel's  Case,  428. 
Deyo  v.  New  York  Cent.  R.  Co.,  8. 
Dezell  v.  Odell,  550. 
Diamond  v.  Lawrence  County,  501. 

v.  Tobias,  309. 
Dick  v.  Cooper,  339. 
Dicken  v.  Johnson,  335. 
Dickenson  v.  Breeden,  396,  398. 
Dickerson  v.  Burke,  126. 

v.  Gordon,  144. 

v.  Hodges,  470. 
Dickie  v.  Carter,  185. 
Dickinson  v.  Hayes,  511. 
Dickson  v.  Gourdln,  312. 
Didlake  v.  Robb,  308,  310,  311. 
Diehl  v.  Emig,  120,  158. 
Diel  v.  Henry  Zeltner  Brew.  Co., 
339. 


598 


TABLE  OF  CASES. 


[REFEBENCES  ABE  TO  PAGES.] 


Diel  v.  Mo.  Pac.  R.  Co.,  159,  164, 

168. 

Diggins  v.  Hartshorne,  383. 
Dillard  v.  Collins,  208. 

v.  Louisville  &  N.  R.  Co.,  213. 
Dille  v.  Lovell,  19. 
Dillingham  v.  Snow,  109. 
Dills  v.  Hampton,  551. 
Dimond   v.    Henderson,   158. 
Dines  v.  People,  391. 
Dinkins  v.  Samuel,  246. 
Dixon  v.  Dixon,  147,  150. 

v.  Niccolls,  424,  425. 

v.  People,  258. 

v.  Pluns,  271. 

v.  Richmond  &  D.  R.  Co.,  294. 

v.  Waters,  504. 
Doane  v.  Willcutt,  519,  521. 
Dobbin  v.  Cordiner,  556. 
Dobie  v.  Armstrong,  332,  333. 
Dobson  v.  Culpepper,  550. 
Dodge  v.  Coffin,  105,  107,  415. 

v.  Emerson,  317. 

v.  Haskell,   134. 
.v.  Hopkins,  122. 

v.  Nat.  Exch.  Bank,  341. 

v.  Pope,   566. 

v.  Stacy,  360. 

v.  Walley,  515,  532. 
Doe  v.  Andrews,  254,  255. 

v.  Baytup,  551. 

v.  Bird,  472. 

v.  Blackman,  387. 

v.  Breakey,     237,     238,     239, 
242,  244. 

v.  Catomore,   135. 

v.  Cooke,  348,  349. 

v.  Deakin,  253,  262. 

v.  Dowdall.  516.  522. 

v.  Eslava,  417. 

v.  Finley,   538. 

v.  Fleming,  237. 


v.  Ford,  537. 

v.  Fraley,   507. 

v.  Griffin,  150,  300. 

v.  Haithcock,  236,  242,  245. 

v.  Hillsborough     Com'rs,     350, 
364. 

v.  Holley,    81. 

v.  Howell,  346,  536. 

v.  Jesson,  253. 

v.  Johnson,   31. 

v.  Knight,    125. 

v.  Lancaster,  345. 

v.  Lindsay,  100,  102. 

v.  Lloyd,  403,  446. 

v.  Maxwell,  355,  541. 

v.  Mills,  551. 

v.  Palmer,  134. 

v.  Paremour,  516. 

v.  Penfold,  259. 

v.  Reed,  350. 

v.  Roe,  253,  255. 

v.  Seaton,  517. 

v.  Shea,  520,  542. 

v.  Shufford,  541,  542. 

v.  Skirrow,  530. 

v.  Strong,  259. 

v.    Sybourn,    348. 

v.  Walters,  555. 

v.  Wright,  348. 
Doggett  v.  Hart,  348,  349. 
Dolder  v.  Bank  of  England,  409. 

v.  Huntingfleld,   419. 
Dole  v.  Wilson,  418. 
Dolph  v.  Barney,  80,  93,  136,  398. 

v.  Clemens,  108. 
Dominici  v.  U.  S.,  402. 
Donahue  v.  Coleman,  12,  146,  149. 
v.  Donahue,  304. 
v.  Klassner,  551. 
v.  State,  350. 

Donald  v.  Chicago,  B.  &  Q.  R.  Co., 
164,  168. 


TABLE  OF  CASES. 


599 


[REFERENCES  ABE  TO  PAGES.] 


Donnelly  v.  Donnelly's  Heirs,  237, 

241,  242,  243. 

Donnely's  Will,  In  re,  185. 
Donohoo  v.  Murray,  526. 
Donohoo's  Lessee  v.  Brannon,  393. 
Donovan   v.   Hartford   St.   R.   Co., 
269,  439. 

v.  Ter.,  390. 
Donston  v.  State,  451. 
Dooley  v.  Cheshire  Glass  Co.,  545. 
Doolittle  v.  Holton,  64. 

v.  Robertson,  518. 
Doran  v.  McConlogue,  182. 

v.  Mullen,  209,  215. 
Dorr  v.  Fisher,  37. 

v.  Stockdale,  501. 

v.  Tremont  Nat.   Bank,   19. 
Dorrell  v.   State,  492. 
Dorsey  v.  Brigham,  32,  97. 

v.  Gassaway,  518,  538. 

v.  Kyle,  100. 

Doswell  v.  Buchanan's  Ex'rs,  517. 
Doty  v.  Brown,  506. 
Dougal  v.  Fryer,  539. 
Dougherty  v.  Deeney,  322. 

v.  Lehigh  C.  &  N.  Co.,  480. 

v.  Mo.  R.  Co.,  298. 
Douglas  v.  Coonley,  465. 

v.  Dakin,  194. 
Douglass  v.  Howland,  116. 

v.  Matting,  212. 

v.  Mitchell's   Ex'r,   64. 
Douthitt  v.  Stinson,  426. 
Dove  v.  State,  23,  326. 
Dow  v.  Jewell,  134,  137. 
Dowd  v.  Wadsworth,  154. 

v.  Watson,  260,  261. 
Dowdell  v.  State,  387. 
Dowell  v.  Guthrie,  17,  268,  277. 
Dowley  v.  Winfleld,  263. 
Downey  v.  Gemini  Min.  Co.,  268, 
282. 

v.  Murphey,  215,  216. 


Downing  v.  Brown,  25. 

v.  Miltonvale,  403,  453. 

v.  Mt.  Wash.  Road   Co.,  113. 
546,  547. 

v.  Plate,  158. 

v.  Rugar,  91. 

Downing's  Heirs  v.  Ford,  348. 
Downs  v.  Sovy,  306. 
Doyle  v.  Bradford,  400. 

v.  Mizner,  546. 

v.  Unglish,  34. 

v.  Wade,    533. 
Dozier  v.  Joyce,  411. 
Drake  v.  Duvenick,  95,  107. 

v.  Latham,  220. 

v.  Mooney,  95. 

v.  Root,  515. 
Drakeford  v.  Adams,  25. 
Dranguet  v.  Prudhomme,  31,  36. 
Drennan  V.  Bunn,  496. 

v.  Douglas,  246,  247. 
Dresbach  v.  Minnis,  549. 
Dreyfus  v.  Aul,  32. 
Driggs  &  Co.'s  Bank  v.  Norwood, 

173,  174. 

Driscoll  v.  Damp,  512. 
Drosten  v.  Mueller,  158,  162,  168. 
Drouet  v.  Rice,  95. 
Drovers'  Nat.  Bank  v.  Blue,  129. 
Drummond  v.  Hopper,  340. 
Drysdale  v.  Biloxi  Canning  Co.,  94. 
Drysdale's  Appeal,  306. 
Dublin,  W.  &  W.  R.  Co.  v.  Slat- 

tery,  9. 

Dubois  v.  Mason,  226. 
Du  Bois  v.  Phila.,  W.  &  B.  R.  Co., 

505!  , 

Dubuc  v.  Voss,  93. 
Dudley  v.  Bosworth,  301,  302. 

v.  Cadwell,  119. 

v.  Grayson,  300. 

Duffield  v.  Robeson,  331,  333,  335. 
337. 


600 


TABLE  OF  CASES. 


[REFERENCES  ABE  TO  PAGES.] 


Dugan  v.  Chicago,  St.  P.,  M.  &  O. 

R.  Co.,  279. 

Dugas  v.  Estiletts,  146,  147. 
Dugdale  v.  Reg.,  373. 
Duggan  v.  Cole,  39. 

v.  Pac.  Boom  Co.,  320. 
Duke  v.  Cahawba  Nav.  Co.,  110. 

v.  Taylor,  109,  546. 

v.  Thompson,  348. 
Dukehart  v.  Coughman,  26. 
Dukes  v.  Spangler,  556. 
Duluth  v.  Krupp,  96. 
Dumas  v.  State,  244. 
Dunbar  v.  Parks,  449. 
Dunbier  v.  Day,  286. 
Duncan,  Ex  parte,  197. 
Duncan  v.  Gilbert,  127,  129. 

v.  Lynchburg,  400. 

v.  Potts,  346. 

v.  Spear,  344. 

Duncombe  v.  Richards,  180. 
Dundas  v.  Hitchcock,  523. 
Dunham  v.  Cudlipp,  462. 
Dunlap  v.  Edwards,  512. 
Dunlop  v.  Ball,  313. 
Dunn  v.  Adams,  226,  228,  229. 

v.  Eaton,  350. 

v.  New     Orleans     Bldg.     Co., 
113. 

v.  Record,  182. 
Dunning  v.   Maine  Cent.   R.   Co., 

469. 

Dunseth  v.  Wadev  289. 
Dunstan  v.  Higgins,  487. 
Dupas  v.  Wassell,  544. 
Dupays  v.  Shepherd,  377,  419. 
Durant  v.  Abendroth,  493. 

v.  People,  369. 
Duren  v.  Houston  &  T.  C.  R,  Co., 

398. 
Durgin  v.  American  Exp.  Co.,  213. 

v.  Danville,  157,  168. 


Durham  v.  Alden,  515. 

v.  Daniels,  400. 

v.  Greenly,  305. 

v.  Williams,  506. 
Durkee  v.  People,  554. 
Durning  v.  Hastings,  236,  245. 
Durrell  v.  Johnson,  277,  281. 
Du  Val  v.  Marshall,  226,  545. 
Dyer  v.  Ashton,  471. 

v.  Flint,  386. 

v.  Last,  394,  395. 

v.  Rich,  523. 

Dyett  v.  Hyman,  498,  499. 
Dyson  v.  New  York  &  N.  E.  R.  Co., 
429. 

E. 

Eagle  v.  Emmet,  260. 

Eagle  Packet  Co.  v.  Defries,  295. 

Eagle  Woolen  Mills   Co.  v.   Mon- 

teith,  533. 

Eakin  v.  Brewer,  345. 
v.  McCraith,  501. 
Eames  v.  Eames,  149. 
E.  A.  Packer,  The,  402. 
Earl  v.  De  Hart,  354. 
Earl  Beauchamp  v.  Winn,  219. 
Earle  v.  Chace,  180. 
Early  v.  Preston,  86. 
Eason,  Ex  parte,  247. 
Eastham  v.  Powell,  124. 
Eastis    v.    Montgomery,    184,    185, 

333,  335. 
Eastman  v.  Chicago  &  N.  W.  R. 

Co.,  438. 

v.  Cooper,  131,  505,  508,  511, 

512. 

v.  Curtis,   356. 
v.  Gould,  33. 
East  Omaha  St.  R.  Co.  v.  Godola, 

225. 
East  Tenn.  Iron  Mfg.  Co.  v.  Gas- 

kell,  398. 


TABLE  OF  CASES. 


601 


[REFERENCES  ABE  TO  PAGES.] 


East  Term.,  V.  &  G.  R.  Co.  v.  Bay- 
liss,  273. 

v.  Kane,  165,  466. 

v.  Stewart,  18,  268. 
East  Tex.  F.  Ins.  Co.  v.  Perkey,  87. 
Eaton  v.  Alger,  14. 

v.  Eaton,  223. 

v.  Trowbridge,   123. 

v.  Woydt,  148. 
Eaton    Cole    &    Burnham    Co.    v. 

Avery,  405. 
Ebey  v.  Adams,  532. 
Eckerly  v.  Alcorn,  85,  87. 
Eckerson  v.  Crippen,  365. 
Ecton  v.  Harlan,  126. 
Eddy  v.  Gray,  432. 

v.  Lafayette,  274. 
Ede  v.  Johnson,  393,  394. 
Edgar  v.  McCutchen,  430. 
Edgerton  v.  N.  Y.  &  H.  R.  Co.,  297. 
Edgington  v.  Fitzmaurice,  567. 
Edie  v.  East  India  Co.,  404. 
Edson  v.  Munsell,  359,  360. 
Edwards  v.  Bailey,  519. 

v.  Hillier,  522. 

v.  Knapp,  26. 

v.  Norton,  460. 

v.  Reid,  173. 

v.  San  Jose  Print.  Soc.,  430. 

v.  State,  191. 

v.  Tuck,  299. 

v.  University,  39. 
Eells  v.  Chesapeake  &  O.  R.  Co., 

359. 

Egan  v.  Bowker,  160. 
Egbers  v.  Egbers,  4,  16,  17,  333. 
Egbert  v.  Egbert,  333. 

v.  Greenwalt,  27,  245,  250,  251. 
Ehle's  Will,  In  re,  263. 
Ehle  v.  Bingham,  513. 
Eibel  v.  Von  Fell,  207. 
Eichelberger   v.    Old   Nat.   Bank, 
129. 


Eichhoff's  Estate,  In  re,  99,  105. 
Eichhoff  v.  Eichhoff,  99,  106. 
Eikenberry  v.  Edwards,  498. 
Eingartner  v.   111.   Steel  Co.,   228, 

229. 

Eisenberg  v.  Nichols,  559. 
Elderton's  Case,  387. 
Eldred    v.   Eldred,    235,   236,   237, 

238,  239,  240. 
Eldridge  v.  Hawley,  158,  164,  167. 

v.  Knott,  96,  349. 
Elec.  R.  Co.  v.  Shelton,  270. 
Elfers  v.  Woolley,  157. 
Elgin  v.  Hall,  135. 
Elkin  v.  Janson,  32,  172. 
Elkinton  v.  Brick,  333,  336,  338. 
Ellerman  v.  Chicago,  J.  R.  &  U. 

S.  Co.,  113. 

Ellicott  v.  Martin,  127,  341. 
Elliot  v.  Whitmore,  562. 
Elliott  v.  Chicago,  etc.,  R.  Co.,  8. 

v.  Kemp,  346. 

v.  Peirsol's   Lessee,  487,  488. 

v.  Van  Buren,  25. 

v.  Williamson,   307,   312,   324. 
Ellis'  Estate,  In  re,  94. 
Ellis  v.  American  Tel.  Co.,  287. 

v.  Buzzell,  25,  47,  206. 

v.  Gary,  303. 

v.  Ellis,  64,  151. 

v.  Maxson,  228,  229. 

v.  Park,  431. 

v.  Reddin,  408. 

v.  Sanford,  168. 
Ellsworth  v.  Moore,  393. 
Elmendorf  v.  Taylor,  396. 
El  Modello  C.  M.  Co.  v.  Gato,  206. 
Elofrson  v.  Lindsay,  345. 
Eloi  v.  Mader,  245,  247. 
Elrod  v.  Myers,  144,  145. 
Elsberry  v.  Boykin,  124. 
Else  v.  Else,  236. 
Elton  v.  Larkins,  472,  474. 


602 


TABLE  OF  CASES. 


[REFERENCES  ABE  TO  PAGES.] 


Elwell  v.  Martin,  141. 
Elwood  v.  Flannigan,  397. 
Ely  v.  Ely,  136,  137. 

v.  James,  226. 
Emans  v.  Turnbull,  348. 
Emanuel  v.  White,  127,  341. 
Embury  v.  Conner,  511. 
Emerine  v.  O'Brien,  317. 
Emerrson  v.  White,  300. 
Emerson  v.  Bemis,  174. 

v.  Burns,   130. 

v.  Fisk,  159. 

v.  Sansome,   536. 

v.  Shaw,   239. 
Emery  v.  Estes,  128. 

v.  Grocock,  348. 

v.  Hoyt,  335. 

v.  Raleigh   &  G.   R.    Co.,   354, 

365. 

Emmes  v.  Feeley,  551. 
Empire  Transp.  Co.  v.  Phila.  &  R. 

C.  &  I.  Co.,  16. 
Endsley  v.  Johns,  207. 
Enfield  v.  Permit,  477. 
England  v.  Slade,  348. 
English  v.  Register,  357. 

v.  Woodman,  99. 
Engrer  v.  O.  &  M.  R.  Co.,  281. 
Engstrand  v.  Kleppman,  225. 
Enix  v.  Miller,  458. 
Ennis  v.  Smith,  377. 
Enos  v.  St.  F.  &  M.  Ins.  Co.,  155, 

162. 

Ensign  v.  Webster,  322,  549. 
Epperson  v.  State,  200.  * 
Eppinger  v.  Scott,  87,  88.   ' 
Ereskine  v.  Murray,  404. 
Erhart  v.  Dietrich,  53,  303,  323. 
Erickson  v.  Schmill,  432. 
Erie   &   W.   V.    R.   Co.   v.    Smith, 

276. 
Erskine  v.  Davis,  147,  151. 


Ervin  v.  Morris,  518. 
Erwin  v.  English,  151. 

v.  Garner,  499,  507. 

v.  Lowry,   102. 
Espley  v.  Wilkes,  526. 
Estabrook  v.  Hapgood,  432. 
Estelle  v.  Peacock,  493. 
Esterly  v.  Eppelsheimer,  211. 
Estes  v.  German  Nat.  Bank,  121. 

v.  Levering  Shoe  Co.,  341. 
Estey  Mfg.  Co.  v.  Runnels,  545. 
Estis  v.  Jackson,  557,  566. 
Estrella,  The,  410. 
Etheridge  v.  Davis,  463. 
Eureka   Springs   R.   v.    Timmons, 

225. 

Evans    v.    Arnold,    19,    183,    331, 
334. 

v.  Bailey,  114. 

v.  Birch,  305. 

v.  Bouton,  102. 

v.  Chamberlain,  9. 

v.  Cleary,  231. 

v.  Com.,  503. 

v.  Forstall,  566. 

v.  Robberson,   94. 

v.  Tatem,  487. 

v.  Winston,  34. 
Evansville  v.   Senhenn,   141. 
Evansville    St.    R.    Co.   v.   Gentty, 

280. 
Everett    v.    Los    Angeles    Consol. 

Elec.  R.  Co.,  420. 
Everitt  v.  Everitt,  507. 
Evers  v.  Watson,  102. 
Everson  v.  Carpenter,  143. 
Evertson  v.  Sutton,  346. 
Ewar  v.  Street,  289. 
Excelsior  Mfg.  Co.  v.  Owens,  173 

323. 

Eyrick  v.  Hetrick,  124. 
Eyster  v.  Gaff,  391. 


TABLE  OF  CASES. 


603 


[REFERENCES 


F. 


Fahey  v.  Esterley  Mach.  Co.,  512. 

v.  Mottu,  103. 

v.  State,  468. 

Fairly  v.  Wappoo  Mills,  36. 
Fairtitle   v.   Gilbert,   541. 
Faison  v.  Ala.  &  V.  R.  Co.,  294. 

v.  Grandy,  565. 
Falconer  v.  Smith,  33. 
Falkner  v.  Christian's  Adm'r,  107. 
Falls  v.  United   S.  Sav.  L.  &  B. 

Co.,  423. 

Falvey  v.  State,  369. 
Fancher  v.  De  Montegre,  386,  388. 
Fanning  v.  Lent,  195. 
Fannoner  v.  King,  560. 
Faran  v.  Robinson,  502. 
Farber  v.  Mo.  Pac.  R.  Co.,  233,  438. 
Farish  v.  Reigle,  298. 
Farley  v.   Phila.   Traction  Co.,  8. 
Farmer  v.  Farmer,  181. 
Farmers'   Bank   v.    Leonard,    306, 
314. 

v.  Worthington,  164. 
Farmer's  Heirs  v.  Eslava,  417. 
Farmers'  L.   &   T.   Co.  v.   Siefke, 

12,  16,  18,  33. 
Farr  v.  Payne,  149. 

v.  Sims,  98. 
Farrall  v.  State,  45. 
Farrand  v.  Aldrich,  165. 
Farrar  v.  Bates,  392. 

v.  Cooper,   525. 

v.  Hutchinson,  549. 

v.  Merrill,  347. 
Farris  v.  Com.,  200. 

v.  Houston,    550. 
Farwell  v.  Cramer,  340. 

v.  Des  Moines  Brick  Mfg.  Co. 

122. 

Faulcon  v.  Johnston,  478. 
Faulkner  v.  Ter.,  24,  329. 


IE    TO    PAGES.] 

Faulkner's    Adm'r    v.    Williman, 

254,  300. 

Favro  v.  State,  369. 
Fawcett  v.  Osborn,  343. 
Fay  v.  Burditt,  330. 

v.  Davidson,  272. 
Fayette  Land  Co.  v.  Louisville  & 

N.  R.  Co.,  546. 

Fazakerley  v.  Wiltshire,  381. 
Fearn  v.  West  Jersey  Ferry  Co., 

299. 

Federal  St.  &  P.  V.  R.  Co.  v.  Gib- 
son, 297,  299. 
Fee  v.  Taylor,  333. 
Feemster  v.  Ringo,  406. 
Feiertag  v.  Feiertag,  303. 
Feital  v.  Middlesex  R.  Co.,  297. 
Feldman  v.  Beier,  317. 

v.  Gamble,  172,  233. 
Felig  v.  Sleet,  320. 
Felker  v.  Emerson,  191. 
Feller  v.  Green,  177. 
Fellows  v.  Menasha,  410,  416. 
Fennell  v.  Henry,  301,  302. 
Fenton  v.  Reed,  235,  238,  241,  243, 
244,  245. 

v.  Scott,  97. 

v.  State,  434. 
Fenwick  v.  Reed,  350. 
Ferdinand  v.  State,  426. 
Ferguson  v.  Brooks,  190. 

v.  Lowery,  183. 

v.  Millikin,  549. 

v.  Wis.  Cent.  R.  Co.,  339. 
Ferrell  v.  Adler,   496. 
Ferris  v.  Commercial  Nat.  Bank, 
394. 

v.  Hard,  462,  466. 
Ferson  v.  Wilcox,  470. 
Fetrow  v.  Wiseman,  222. 
Fibel  v.  Livingston,  214. 
Fidelity  Ins.,  etc.,  Co.  v.  EickhofT, 
232. 


604 


TABLE  OF  CASES. 


[REFERENCES  ABE  TO  PAGES.] 


v.  Shenandoah    Val.    R.    Co., 

553. 
Field  v.  Brown,  357,  364. 

v.  Holland,  466. 

v.  New  York  Cent.  R.,  274,  275. 

v.  Surpless,  461,  466. 
Filkins  v.  O'Sullivan,  195. 
Fillebrown  v.  Grand  T.  R.  Co.,  290. 
Finch  v.  Barclay,  89. 

v.  Garrett,  301. 

v.  Mansfield,  216. 
Finch's  Ex'rs  v.  Alston,  344,  346, 

367. 

Finegan  v.  Theisen,  182. 
Finley  v.  Hanbest,  514. 

v.  Widner,  39. 
Finneran  v.  Leonard,  83. 
Finney  v.  Boyd,  501. 

v.  State,  244. 
Firemen's   Ins.    Co.    v.    McMillan, 

503. 
First  Nat.  Bank  v.  Allen,  88,  560. 

v.  Anderson,  127. 

v.  Carpenter,  131. 

v.  Case,  317. 

v.  City  Nat.  Bank,  494. 

v.  Cody,  558. 

v.  Commercial  Assur.  Co.,  27, 
49. 

v.  Emmitt,  126. 

v.  Franklin,  132. 

v.  Green,  130. 

v.  Gruber,  401. 

v.  Harris,  323. 

v.  Hellyer,   304. 

v.  Huntingdon  D.  Co.,  478. 

v.  Johns,  212. 

v.  Leach,  319. 

v.  Lierman,  211. 

v.  McManigle,   85. 

v.  Marshall    &    I.    Bank,   561, 
568. 

v.  Mason,  552. 


v.  Maxwell,  566. 

v.  Nat.   Broadway  Bank,  228, 
229. 

v.  Ragsdale,  463. 

v.  Shuler,  499. 

v.  Stewart,  546. 

v.  Zent,  283. 
Fish  v.  Cleland,  220. 

v.  Lightner,  508. 

v.  Smith,  412. 
Fishburne    v.    Ferguson's    Heirs, 

336. 
Fisher  v.  Bishop,  181. 

v.  Cid  Copper  Min.   Co.,  528, 
529. 

v.  Donovan,  231. 

v.  Fielding,  487. 

v.  Hallock,  520. 

v.  Kelsey,   286. 

v.  Phillips,  310. 

v.  State,  22,  328. 
Fisher's  Ex'r  v.  Mossman,  566. 
Fiske    v.    North    Eastern    Marine 

Ins.  Co.,  172. 
Fitch  v.  Baldwin,  516. 

v.  Jones,  127,  128,  129. 
Fite  v.  Black,  466,  467. 
Fitzgerald    v.    Fitzgerald    &    M. 
Const.  Co.,   231. 

v.  Peck,  219. 

Fitzhugh's  Heirs  v.  Tyler,  517. 
Fitzpatrick   v.    Papa,   429. 
Fitzsimons  &  C.  Co.  v.  Braun,  423. 
Fitzwilliam  v.  Troy,  301. 
Fivey  v.  Pa.  R.  Co.,  172,  209. 
Fladong  v.  Winter,  ,814. 
Flagg  v.  Baldwin,  228,  230. 

v.  School  Dist.  No.  70,  527. 
Flanigen  v.  Washington  Ins.  Co., 

396,  428. 

Flannegan  v.  Chesapeake  &  O.  R. 
Co.,  161,  270. 


TABLE  OF  CASES. 


605 


[REFERENCES  ABE  TO  PAGES.] 


Flann^ry   v.    Waterford    &   L.   R. 

Co.,  297. 

Flash  v.  Conn,  396. 
Flato  v.  Mulhall,  226,  230. 
Fleischmann  v.  Stern,  463,  464. 
Fleming  v.  Barden,  564. 

v.  Fleming,  237,  243,  244. 

v.  McClure,  404. 

v.  People,  115. 

v.  Pittsburgh,    etc.,    R.,    296, 
299. 

v.  Rothwell,    308. 
Fleming  &  A.  Co.  v.  Evans,  85. 
Flenner  v.  Travelers'  Ins.  Co.,  536. 
Flesh  v.  Lindsey,  190. 
Fletcher  v.  Braddyll,  86. 

v.  Chicago,  etc.,  R.  Co.,  113. 

v.  Coleman,  540. 

v.  Fletcher,  154. 

v.  Fuller,  347,  349,  350,  361. 
Fletcher's  Adm'r  v.  Sanders,  102. 
Flint  v.  Phipps,  120,  126. 
Florentine  v.  Barton,  99,  106. 
Flournoy  v.  Warden,  194,  195. 
Floyd  v.  Calvert,  239. 

v.  Goodwin,  173,  176. 

v.  Johnson,  432. 

v.  Ricks,  425. 

Floyd  County  v.  Morrison,  526. 
Flynn  v.  Coffee,  260,  261. 

v.  Kan.  City,  etc.,  R.  Co.,  279. 
Fogg  v.  Gibbs,  107. 

v.  Holcomb,  384. 
Foley  v.  Cal.  Horseshoe  Co.,  453. 

v.  Holtry,  462,  474. 
Foley-Wadsworth  Imp.  Co.  v.  Solo- 
mon, 132. 

Folger  v.  Boyinton,  468. 
Follain  v.  Lefevre,  386. 
Follansbee  v.  Walker,  513. 
Folsom  v.  Brawn,  26. 

v.  Cook,  84. 


Foltz  v.  Wert,  143. 

Fonda  v.  St.  Paul  C.  R.  Co.,  161, 

164,  165,  168. 

Fonseca  v.  Cunard  S.  S.  Co.,  214. 
Fontaine  v.  Gunter,  135. 
Foot  v.  Stevens,  100. 
Foote  v.  Clark,  530,  532. 
Forbes  v.  King,  431. 
Ford  v.  Ager,  552. 

v.  Ford,  333. 

v.  Gregory's  Heirs,  122,  123. 

v.  Hennessy,  182. 

v.  Hopkins,  404. 

v.  Mitchell,  317,  318,  319,  320. 

v.  Phillips,  222. 

v.  State,  21,  326,  327,  328,  336, 
337,  338,  373. 

v.  Unity  Church  Soc.,  517,  523. 
Ford's  Lessee  v.  Hays,  531. 
Fordyce  v.  Kosminski,  561. 

v.  McCants,  160,  167. 

v.  Rapp,  534. 
Fornes  v.  Wright,  9. 
Forney  v.  Hallacher,  244,  245. 
Fornshill  v.  Murray,  236,  244,  245. 
Forrester  v.  Georgia  R.  &  B.  Co., 

294. 

Forsaith  v.  Clark,  80,  81,  93. 
Forsyth  Mfg.  Co.  v.  Castlen,  234. 
Ft.  Smith  v.  Dodson,  31,  42,  89. 
Foscue  v.  Lyon,  426. 
Foster   v.    Beardsley    Scythe    Co., 
125. 

v.  Berry,  70. 

v.  Com.,  139. 

v.  Dwinel,  533. 

v.  Givens,  99. 

v.  Glazener,  103. 

v.  Globe    Venture    Syndicate, 
408,  409,  445. 

v.  Johnson,  518. 

v.  Mackinnon,   210,   211,    212. 


606 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  PACES.] 


v.  Reid,  33. 

v.    Wadsworth-Howland      Co., 
339. 

v.  Wells,  512. 

Foulk  v.  Brown,  306,  313,  314,  315. 
Fourth    Nat.    Bank   v.    Francklyn, 
397,  457. 

v.  Olney,   545. 
Fowle  v.  Alexandria,  470. 

v.  Child,  492. 
Fowler  v.  Merrill,  118. 

v.  Wallace,   26. 

v.  W.  U.  Tel.  Co.,  287. 
Fox  v.  Clifton,  558. 

v.  Glastenbury,  280. 

v.  Hale  &  N.  S.  Min.  Co.,  155, 
405. 

v.  Hoyt,   103. 

v.  Union  Sugar  Refinery,  526. 

v.  Windes,   88,  536. 
Foye  v.  Patch,  212. 
France  v.  Andrews,  254,  255. 
Francis  v.  Francis,  254. 

v.  Wilkinson,   330. 
Frank  v.  Chemical  Nat.  Bank,  566. 
Franklin   v.   Baker,    135. 

v.  Borland,   518,   529,   535. 

v.  Twogood,    545. 
Franklin's  Adm'r,  Appeal  of,  190. 
Frazer  v.  Hilliard,  518. 

v.  Pendlebury,  528. 

v.  State,  431. 
Frazier  v.  Brown,  365. 
Freeh  v.  Philadelphia,  etc.,  R.  Co., 

267,  277. 
Fredenburg    v.    Lyon    Lake   M.   E. 

Church,  109. 
Fredericks  v.  Northern  C.  R.  Co., 

296. 

Fred  M.  Laurence,  The,  160. 
Freel  v.  State,  191. 
Freeman  v.  Auld,  525. 

v.  Barnum,   509. 


v.  Bridger,  145. 

v.  Cooke,  557. 

v.  Hawkins,  491. 

v.  McAninch,  513. 

v.  Morey,   87. 

v.  Thayer,  95. 

v.  Thompson,   100. 

v.  Travelers'  Ins.  Co.,  38,  267. 
Freeny  v.  Hall,  567. 
Freeport  v.  Isbell,  157. 
Fremont  v.  U.  S.,  417. 
Fremont,    E.    &    M.    V.    R.    Co.    v. 

Harlin,  18,  38. 
Fremoult  v.  Dedire,  412. 
French  v.  .Barre,   381. 

v.  Day,  24. 

v.  Deane,  166. 

v.  Frazier's    Adm'r,    259. 

v.  French,  321. 

v.  Irwin,    319. 

v.  Lancaster,  384. 

v.  State,  20,  203. 

v.  Watson,  39. 
Frese  v.  State,  430,  435. 
Fretelliere  v.  Hindes,  530. 
Frey  v.  Ramsour,  533,  536. 
Frick  v.  Barbour,  161,  169. 
Frierson  v.  Galbraith,  93. 
Frink  v.  Darst,  519. 
Frorer  v.  People,  420. 
Frybarger  v.  McMillen,  101,  105. 
Frye  v.  Illinois  Bank,  114. 
Fuchs  v.  St.  Louis,  423. 
Fudge  v.  Payne,  24. 
Fuller  v.  Linzee,  264. 

v.  Metropolitan  L.  Ins.  Co., 
480,  485,  488,  491,  499, 
506,  508. 

v.  Worth,  358. 
Funkhouser  v.  Wagner,  284. 
Furgeson  v.  Jones,  103,  105. 
Furhnan  v.  Huntsville,  402. 
Furlong  v.  Hysom,  193. 


TABLE  OF  CASES. 


607 


[REFERENCES  ARE  TO  PAGES.] 


Furneaux  v.  First  Nat.  Bank,  506. 
Furness   v.    Williams,   516. 
Furnish   v.   Missouri   Pac.   R.   Co., 

297. 
Fuselier  v.  Babineau,  504. 

G. 

Gablick  v.   People,  371. 
Gadsby  v.  Stimer,  103. 
Gady  v.  State,   406,  452. 
Gage  v.  Gunther,  488. 
v.  Hill,  487. 

v.  Parmelee,  158,  162,  168. 
Gahagan  v.  Boston     &  L.  R.  Co., 

280,  281. 
Gaines  v.  Miller,  305. 

v.  Union  T.  &  I.  Co.,  214,  291. 
Gaither  v.  Welch's  Estate,  501. 
Galena  &  C.  U.  R.  Co.  v.  Yarwood, 

297. 

Gall  v.  Gall,  238,  240,  243. 
Gallagher  v.  State,  408. 
Gallaher  v.   Moundsville,   506. 
Galland  v.  Jackman,  134. 
Galpin  v.  Chicago  &  N.  W.  R.  Co., 

273. 

v.  Page,  99,  100,  103,  106. 
Galveston,   H.   &   S.   A.    R.   Co.    v. 

Horn,  275. 

v.  Kutac,  501. 

Galvin  v.  Meridian  Nat  Bank,  127. 
Gamble   v.    Central    R.    &   B.   Co., 

102,  407. 
Gandy  v.  Chicago  &  N.  W.  R.  Co., 

275. 
Ganley    v.    Troy   City   Nat.    Bank, 

283. 
Gannon  v.  Laclede  Gas  Light  Co.. 

9,  270. 

Garber  v.  Com.,  503. 
Garcelon's  Estate,  in  re,  66. 
Garcia  v.  State,  368,  369,  371. 
Gardemal   v.  McWilliams.  208. 


Garden  v.  Garden,  256. 
Gardiner  v.  Suydam,  518. 
Gardner  v.  Collector,  445. 

v.  Eberhart,  384. 

v.  Gardner,  246. 

v.  Greene,  529. 

v.  Meeker,  473. 

v.  State,  247. 
Garland  v.  Gaines,  84. 

v.  Lane,  45,  130. 
Garlock  v.  Goertner,  323. 
Garner  v.  Green,  146,  150. 
Garnier  v.  Renner,  308. 
Garnons  v.  Knight,  125. 
Garrett  v.  Hanshue,  469. 

v.  Heflin,  215. 

v.  Southern  R.  Co.,  275,  439. 
Garrigus   v.    Home   Frontier   &  F. 

M.  Soc.,  120. 
Garth  v.  Caldwell,  425. 
Garvin  v.  Wells,  402. 

v.  Williams,  185. 
Garwood  v.  Garwood,  499. 

v.  Hastings.  254,  255. 
Gaskill  v.  Dudley,  497. 
Gaston  v.  Brandenburg,  554. 
Gates  v.  Johnson  County,  388,  426. 
Gaul  v.  Fleming,  206,  207. 
Gauldin  v.  Shehee,  216. 
Gay  v.  Bates,  17,  33,  282. 

v.  Gillilan,  16,  184. 

v.  Union  M.  L.  Ins.  Co.,  330. 
Gayle  v.  Price,  533. 
Gaylord  v.  Nebraska  S.  &  E.  Bank, 

554. 
Gaynor  v.  Old  Colony  &  N.  R.  Co., 

280,  376,  420. 

Geach  v.  Ingall,  19,  37,  41. 
Gee  v.  Hicks,  232. 
Geer  v.   Missouri   Lumber  &  Min. 

CO.,  194. 

Geist  v.  Detroit  City  R.,  422. 
Gelston  v.  Hoyt,  409. 


608 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  PAGES.] 


Gemmell  v.  Rice,  100. 
George  v.  Jesson,  253. 

v.  Los  Angeles  R.  Co.,  142. 

v.  Putney,  551. 

v.  St.    Louis,    I.    M.    &    S.    R. 
Co.,  297. 

v.  Thomas,  237,  238. 
Georgia  Pac.  R.  Co.  v.  Davis,  278. 

v.  Love,  296. 

v.  Strickland,  553. 
Georgia  R.  &  B.  Co.  v.  Keener,  291. 

v.  Lybrend,   155. 
Gerdes'  Estate,  In  re,   264. 
Gerding  v.  Walter,  325. 
Gerenger  v.  Summers,  362. 
German  Bank  v.  American  F.  Ins. 

Co.,  230. 

German  Nat.  Bank  v.  Burns,  86. 
Germania  F.  Ins.  Co.  v.  Klewer,  25, 
27. 

v.  Memphis  &  C.  R.  Co.,  213. 
Germond  v.  People,  537. 
Gernon  v.  McCan,  304. 
Gerrish  v.  Nason,  215,  331,  334. 
Gerry  v.   Post,   257. 
Gerz  v.  Weber,  303. 
Geuing  v.  State,  44. 
Ghosts'   Trusts,   In   re,   535. 
Gibbes  v.  Vincent,  257. 
Gibbon    v.    Featherstonhaugh',    323. 
Gibbons  v.  Ogden,  420. 
Gibbs  v.  Linabury,  211. 

v.  Thayer,  538. 
Giblin  v.  McMullen,   8. 
Gibson  v.  Foster,  107. 

v.  Huntington,  268. 

v.  International  Trust  Co.,  17, 
62,  268,  277. 

v.  Jeyes,  182. 

v.  Lowndes,  312. 

v.  Martin,  98. 

v.  State,  198,  202,  205. 


v.  Tobey,  319. 

v.  Vetter,  36. 

Gibson   County    Com'rs   v.    Cincin- 
nati Steam  Heat  Co.,  93. 
Gifford  v.  Corrigan,  125. 
Gilbert    v.    American    Surety    Co., 
489. 

v.  Flint  &  P.  M.  R.  Co.,  433. 

v.  Moline  W.  P.  &  Mfg.  Co.,  408, 
427. 

v-  National  Cash  Register  Co., 
382,  393. 

v.  North  American  F.  Ins.  Co., 
123. 

v.  Ross,  164. 

v.  State,  199. 

v.  York,   102. 
Gildersleeve  v.  Landon,  473. 

v.  Mahony,  474. 
Gill  v.  State,  190. 
Gilleland's  Lessee  v.  Martin,  251. 
Gillespie  v.  Shuliberrier,  336. 
Gillett  v.   Camp,   303. 

v.  Peppercorne,  181. 

v.  Wiley,  554,  557,  562. 
Gillham  v.  State  Bank,  341. 
Gilliam  v.  Bird,  532,  533. 
Gilliland  v.  Fenn,  522,  523. 

v.  Sellers'  Adm'rs,  390,  393. 
Gillson  v.  Price,  27. 
Gilman  v.  New  Orleans  &  S.  R.  Co., 
128. 

v.  Sheets,  151,  194. 
Gilmore  v.  Driscoll,  365. 
Gilson  v.  AVood,  340,  344. 
Girard  v.  Futterer,  311. 
Gist  v.  Drakely,  218. 

v.  Western    U.    Tel.    Co.,    230, 

232. 

Gitt  v.  Watson,  194. 
Givens  v.  Tidmore,  195. 
Gizler  v.  Witzel,  17. 


TABLE  OF  CASES. 


609 


[REFERENCES  ABE  TO  PAGES.] 


Gjerstadengen  v.  Hartzell,  530,  539, 

559,  566. 

Gladson  v.  Whitney,  300. 
Glaze  v.  Three  Rivers  F.  M.  F.  Ins. 

Co.,  121,  123. 
Gleason  v.  Smith,  141. 
Cleaves  v.  Brick  Church  Turnpike 

Co.,  110. 
Gleeson  v.  Virginia  M.  R.  Co.,  296, 

299. 

Glendarroch,  The,  292. 
Glenn  v.  Bergmann,  546. 

v.  Brush,  489. 

Globe  Ace.  Ins.  Co.  v.  Gerisch,  64. 
Globe  Printing  Co.  v.  Stahl,  429. 
Glover  v.  Walker,  539. 
Glymont  I.  &  E.  Co.  v.  Toler,  310. 
Glynn  v.  George,  551. 
Godfrey  v.  Godfrey,  99,  418. 

v.  Miller,   173. 

v.  State,  138. 

v.  Valentine,  106. 
Godfrey  v.  Disbrow,  117. 
Goggans  v.  Monroe,  206. 
Golden  v.  Knowles,  470. 
Golden  Star  Fraternity  v.  Conklin, 

37. 

Golding  v.  Golding,  180. 
Goldsboro  v.  Central  R.  Co.,  429. 
Goldsmith   v.   Mutual   L,   Ins.   Co., 
266. 

v.  Sawyer,  404. 
Goldstein  v.  People,  187,  369. 
Goldwater  v.  Burnside,  151. 
Golliher  v.  Com.,  200. 
Gonzales  v.  Hukil,  540. 

v.  Ross,  93. 

Gooch  v.  Faucette,  228,  230. 
Good  v.  French,  32. 

v.  Herr,  220. 

Goodall  v.  State.  200,  205. 
Goodbar  v.  Lidikey,  185. 


Goodell  v.  Hibbard,  195. 
Goodell's  Ex'rs  v.  Gibbons,  39. 
Goodenough  v.  Fellows,  540. 
Gooding  v.  Morgan,  381,  384,  395. 
Goodman  v.  Alexander,  144,  145. 

v.  Eastman,  561. 

v.  Harvey,  126. 

v.  Randall,  525. 
Goodnight  v.  Saul,  249. 
Goodnow  v.  Litchfleld,  231. 
Goodsell  v.  Delta  &  P.  L.  Co.,  102. 

v.  Taylor,  146,  298. 
Goodspeed  v.  Fuller,  527. 
Goodwin  v.  Appleton,  385,  428. 

v.  Baxter,  347. 

v.  Dean,   152. 

v.  Garr,  340. 

v.  Goodwin,   151. 

v.  Provident    Sav.    L.    Assur. 
Ass'n,  43,  85,  231. 

v.  Sims,  104,  107. 

v.  Smith,  31,  32. 
Goodwyn  v.  Baldwin,  216. 
Goodyear  Dental  Vulcanite  Co.  v. 

Bacon,  35. 
Gordon  v.  Bowne,  257. 

v.  James,   565. 

v.  Kennedy,   511. 

v.  Montgomery,  400. 

v.  Parmelee,  25. 

v.  People,  161. 

v.  Richmond,  278. 

v.  San  Diego,  527. 

v.  State,   139,   140. 

v.  Tweedy,   432. 
Gorman  v.   State,   258. 

v.  Sutton,   26. 

Gormely  v.  Gymnastic  Ass'n,  221. 
Gormley  v.  Bunyan,  397,  453. 
Gorton   v.  Roach,  531. 
Goshen  v.  England,  277. 
Goss  v.  Froman,  247,  250. 


610 


TABLE  OF  CASES. 


[REFERENCES  ABE  TO  PAGES.} 


Gosset  v.  Howard,  107. 
Gottfried  v.  Miller,  518. 
Gould  v.  Oliver,  472. 

v.  White,  307,  308. 
Goulding  v.  Clark,  101. 
Govan  v.  Gushing,  43. 
Gove  v.  Campbell,  174. 
Governor  v.  Campbell,  124. 

v.  Shelby,  503. 
Grabill  v.  Barr,  333,  336. 
Grace  v.  Adams,  213. 

v.  Ballou,  391. 
Gragg  v.  Richardson,  496. 
Graham  v.  Anderson,  393. 
v.  Burch,  180. 
v.  Burlington,   C.  R.   &   N.  R. 

Co.,  296. 
v.  Davis,  291. 
v.  Hawkins,  54. 
v.  Little,    179. 
v.  Meek,    518,  541. 
v.  Peat,   346. 
v.  Thompson,     553,     558,     560 

567. 

v.  Whitely,  101. 
v.  Williams,  414. 
Grand  v.  Cox,  117. 
Grand  Island   &   N.  W.   R.   Co.   v. 

Baker,  497. 

Grand  Lodge  v.  Wieting,  331. 
Grand  Rapids  v.  Braudy,  420. 
Grangers'  L.  Ins.  Co.  v.  Brown,  37. 
Grant  v.  Bledsoe,  104. 
v.  Gooch,   311. 
v.  Moser,   384. 
v.  Walsh,   129. 

Grantham  v.  Canaan,  312,  315. 
Grattan  v.  Grattan,  301. 
Gravely  v.  Com.,  369,  370. 

v.  State,  204. 
Gravens   v.   Rossiter,   122. 


Graves  v.   Colwell,  12,  16,   53,   62, 
63,  196,  524. 

v.  Keaton,  395,  396. 

v.  State,  22,  327. 

v.  United  States,  160,  166. 

v.  White,  180. 

Graves'   Adm'r  v.   Flowers,  502. 
Gravitt  v.  State,  367,  369. 
Gray  v.  Gardner,  95. 

v.  Gillilan,   499,   512. 

v.  Haig,   158,   168. 

v.  McDowell,  254. 

v.  MacLean,  526. 

v.  State,    526. 
Graybeal  v.  Gardner,  333. 
Graydon  v.  Justus,  194. 
Great  Falls  Co.  v.  Worster,  529. 
Great  Western   R.    Co.   v.    Bacon, 

32,  42. 
Greeff  v.  Equitable  L.  Assur.  Soc.. 

465. 

Greeley  v.  Passaic,  44. 
Green  v.  Brown,  257. 

v,  Chicago,    451. 

v.  Dietrich,   551. 

v.  Hedenberg,  559. 

v.  Heritage,  194. 

v.  Indianapolis,  402. 

v.  Maloney,  117,  212. 

v.  Rowcrth,  178,  180. 

v.  Rugely,  230. 

v.  State,  10,  200,  244. 

v.  Tidball,    452. 

v.  Waller,  411. 

v.  Weller,  389. 

v.  Woodbury,  155,  233. 
Green's  Appeal,  553. 
Greenawalt  v.  McEnelley,  237,  238. 
Greene  v.  Couse,  551. 

v.  Dennis,  108,  109. 

v.  Phoenix  M.  L.  Ins.  Co.,  330. 

v.  Smith,  564. 


TABLE  OF  CASES. 


611 


[REFERENCES  ARE  TO  PAGES.] 


Greenfield  v.  Camden,  152. 
Greenfield  Bank  v.  Crafts,  86,  87. 
Greenfield   Sav.   Bank  v.    Stowell, 

561. 

Greenfield's  Estate,  182. 
Greenlees  v.  Greenlees,  306. 
Green  Ridge  R.  Co.   v.  Brinkman, 

275. 

Greensborough    v.    Underbill,    258. 
Greenwade  v.  Greenwade,  321. 
Greenwood  v.  Cline,   184. 

v.  Lowe,   172. 
Greer  v.  Wintersmith,  91. 
Gregg  v.  Sayre's  Lessee,  171. 

v.  Wells,  561. 
Gregory  v.  Baugh,  425. 

v.  Bush,  354. 

v.  Com.,  54,  62,  306,  310. 

v.  People,  517. 

v.  Peoples,  530,  538. 

v.  Wendell,  405. 
Gregory's  Ex'rs  v.  Com.,  311,  312, 

316. 

Grellier  v.  Neale,  117,  120. 
Greneaux  v.  Wheeler,  126. 
Greve  v.  Illinois  Cent.  R.  Co.,  293. 
Grey  v.  Grey,  323. 
Grey's  Ex'r  v.  Mobile  Trade   Co.: 

291. 

Grider  v.  Driver,  229. 
Gridley  v.   Saint   FranciS  Xavier's 

College,  100. 
Griffin  v.  Boston  &  A.  R.  Co.,  276. 

v.  Clinton    Line    Ext.    R.    Co.. 
109. 

v.  Griffin,  120. 

v.  Sheffield,  533,  540. 
Griffiths  v.  Lee,  289. 

v.  Robins,   180. 
Grigby  v.  Cox,  180. 
Grigsby  v.  Peak,  499. 
Grimes  v.  Bastrop,  348,  350. 


v.  Eddy,  422,  434. 

v.  Hilliary,    25,   323. 

v.  State,  372. 
Grimm's  Estate,  239,  240. 
Grimsley  v.  Hankins,  272,  276. 
Grinnell  v.   Cook,  286. 
Griswold  v.  Lundback,  526. 

v.  Pitcairn,  410,  411. 
Grob  v.  Cushman,  389. 
Grosholz  v.  Newman,  516. 
Gross  v.  Grossdale,  195,  196. 

v.  Leber,  219. 
Groth  v.  Washburn,  501. 
Groves  v.  Groves,  300. 
Grubbs   v.   McDonald,   333. 

v.  North  Car.  Home  Ins.  Co.: 

161. 

Grumon  v.  Raymond,  218. 
Guardhouse  v.  Blackburn,  215. 
Guardian  M.  L.  Ins.  Co.  v.  Hogan. 

266. 

Guernsey  v.  Cook,  234. 
Guertin  v.  Mombleau,  540. 
Guest  v.  Reynolds,  365. 
Guetig  v.  State,  23,  328. 
Guffey  v.   O'Reiley,   558. 
Guggenheim  v.  Lake  Shore  &  M. 

S.  R.   Co.,  280. 

Gulf,  C.  &  S.  F.  R.  Co.  v.  Benson 
275. 

v.  Ellis,   161. 

v.  Shieder,  278,  281. 

v.  Smith,  297. 

v.  State,  427,  437. 
Gulf,  H.  &  S.  A.  R.  Co.  v.  Benson, 

276. 

Gulick  v.  Loder,  49,  51,  63,  306. 
Gumm  v.  Hubbard,  97. 
Gunn  v.  Howell,  103. 

v.  Ohio  River  R.  Co.,  450. 
Gunn's  Adm'r  v.  Todd,  463,  474. 
Gunning  v.  People,  383,  452. 


612 


TABLE  OF  CASES. 


[REFERENCES  ABE  TO  PAGES.] 


Gunther  v.  New  Orleans   C.  E.  M. 

A.   Ass'n,  556. 
Gurney  v.  Gurney,  248. 
Gurvin  v.  'Cromartie,  245. 
Guthrie  v.  Murphy,  144,  145. 
Gutta   Percha    &   R.    Mfg.    Co.    v. 

Wood,  37. 

Gutteridge  v.  Smith,  471. 
Guttermann  v.   Schroeder,   304. 
Guy  v.  Washburn,  90. 
Gwinn  v.  Smith,  532. 
Gwyn  v.  Porter,  313. 

H. 

Haber  v.  Klauberg,  391. 
Hadley  v.  Rash,   32,   151. 
Hafter  v.  Strange,  558. 
Hagan  v.  Merchants'  &  B.  Ins.  Co., 

136. 

Hagensick  v.  Castor,  520. 
Hager  v.  Thomson,  172. 
Hagerman  v.  Buchanan,  174. 

v.  Ohio    Bldg.    &    Sav.    Ass'n, 
545. 

v.  Strong,   259. 
Hager's  Town  Turnpike  Road  Co. 

v.  Creeger,  110. 
Hagerty  v.  Bradford,  494. 
Haggin  v.  Haggin,  231. 
Haggland  v.  Stuart,  129. 
Haglar  v.  McCombs,  301,  302. 
Hahn  v.  Kelly,  99,  101,  102,  106. 
Hailes  v.    States,  398. 
Hailey  v.   Boyd's  Adm'r,   504. 
Haines  v.  Amerine,  39. 

v.  Gibson,    424. 
Haire  v.  Wilson,  207. 
Halbrook  v.    State,   244. 
Haldane  v.  Harvey,  159. 
Hale  v.  Hollon,  522. 

v.  Life   Ind.    &   Inv.    Co.,   266. 

v.  Milwaukee    Dock    Co.,    649. 


v.  New  Jersey  S.  N.  Co.,  412, 
413,  447. 

v.  Pack's   Ex'rs,    62,   305,  311, 

312,  313,  314. 

Halfin  v.  Winkleman,  322,  323. 
Hall,  In  re,  417. 
Hall  v.  Augsbury,  354,   363. 

v.  Austin,   147,   162,   164. 

v.  Bainbridge,    120. 

v.  Benner,   122,   525,   528. 

v.  Brown,    401,    445,    446. 

v.  Cheney,  289. 

v.  Finch,  303. 

v.  Gibbs,  308. 

v.  Hall,  124,  302. 

v.  Howd,  101. 

v.  Kellogg,  92. 

v.  Knappenberger,  181. 

v.  Matthews,    529. 

v.  McLeod,   363. 

v.  Penfold,  259. 

v.  Perkins,   179. 

v.  Perry,  331. 

v.  Pillow,    231. 

v.  State,  199. 

v.  Stevens,  318. 

v.  Union  Cent.  L.  Ins.  Co.,  150. 

v.  Warren,  335. 

v.  Woodward,  312,  315,  467. 

v.  Zeller,  506. 

Hall's  Deposition,  252,  254,  255. 
Hallenbake  v.   Fish,  154. 
Hallock   v.   Dominy,   487. 
Hallstead  v.  Curtis,  111,  164. 
Halluck  v.  Bush,  125. 
Halpin  v.  Mutual  Brew.  Co.,  112. 
Halstead's  Appeal,  111. 
Halsted's  Ex'rs  v.  Colvin,  341. 
Ham  v.  Barret,  50,  53,  324. 

v.  Ham,    376,    382,   385. 

v.  Schuyler,  347. 
Ham's  Case,  243. 


TABLE  OF  CASES. 


613 


[REFERENCES  ARE  TO  PAGES.] 


Hambleton  v.  Central  Ohio  R.  Co., 

567. 
Hamilton    v.    McConkey's    Adm'r, 

93. 

Hamilton's  Case,  188. 
Hammann  v.  Mink,  394,  395. 
Hammett  v.  Little  Rock  &  N.  R. 

Co.,  401. 

Hammick   v.   Bronson,   237,   244. 
Hammond  v.  Cooke,  348,  349. 
v.  Gordon,  95,  118. 
v.  Straus,  110. 
Hammond's  Lessee  v.   Inloes,  252, 

300,  397,  399. 
Hanchey  v.  Coskrey,  513. 
Hancock  v.  American  L.  Ins.  Co., 

252,  259,  260. 

v.  Worcester,  390,  393. 
Hancock    County   Com'rs   v.   Leg- 

gett,  99. 

Hancock  Nat.  Bank  v.  Ellis,  412. 
Hand  v.  Howell,  87. 
Handley  v.  Jackson,  498. 
Handy  v.  Foley,  190. 
Haney  v.  Roy,  518. 
Hanley  v.  Donoghue,  397,  413,  415, 

457. 
Hanly   v.   Blackford,   524. 

v.  Levin,  143. 
Hanmer  v.  Chance,  349. 
Hanna  v.  Read,  498,  505,  509. 

v.  Wilcox,  181. 

Hannah   v.  Chase,  89,  95,  98. 
Hannefln   v.  Blake,  366. 
Hannon   v.    Christopher,   520,   542. 
Hanon  v.  State,  115,  243. 
Hanrick  v.  Patrick,  520. 
Hansberg  v.  People,  435. 
Hansell  v.  Hansell,  468. 
Hanson  v.  Buckner's  Ex'r,  527. 
v.  Chiatovich,    148,    343. 
v.  Eustace's  Lessee,  169,  170. 


Harbison  v.  Ind.  Bank,  129. 
Hard  v.   Decorah,   400. 
Hardaway  v.  Drummond,  502. 
Harden  v.  Cullins,  520. 

v.  Darwin,  541. 

v.  Hays,  334,  336. 
Hardin  v.  Crate,  122. 

v.  Iowa  R.  &  C.  Co.,  112. 
Harding  v.  Greening,  233. 
Harden  v.  Hesketh,  169. 
Hardy  v.  Beaty,  106. 

v.  Chesapeake  Bank,  564,  566. 

v.  Merrill,  20,  332,  333. 

v.  Van    Harlingen,    180. 
Hardy's  Case,  51. 
Hare  v.  Gibson,  193. 
Hargrave  v.  Hargrave,  27,  247,  248, 

249,  250. 

Hargroves  v.  Redd,  475. 
Harker  v.  Dement,  343. 
Harkness  v.  Western  Union  Tel. 

Co.,  287. 

Harle  v.  McCoy,  550. 
Harley  v.  Harley,  302. 
Harlinger  v.  New   York  Cent   ft 

H.  R.  R.  Co.,  339. 
Harman  v.   Harman,  236,   243. 
Harmer  v.  Killing,  222. 
Harmon  v.  Auditor  of  Public  Ac- 
counts, 497,  498,  509. 

v.  Dreher,  112. 
Ham  v.  Smith,  518. 
Harp  v.  Parr,  19,  331,  334. 
Harper  v.  Nichol,  104. 
Harriban  v.  Queen  Ins.  Co.,  148. 

v.  R.  &  L.  St.  R.  Co.,  164. 
Harrigan     v.     Connecticut     River 

Lumber  Co.,  428. 

Harrington  v.  Providence,  398,  437. 
Harris,  In  re,  173. 
Harris   v.  Cameron,  433. 

v.  Daugherty,  99. 


614 


TABLE  OP  CASES. 


[REFERENCES  ARE  TO  PAGES.) 


v.  Jacksonville  Bank,  131,  134. 

v.  Merz  A.  I.  Works,  304. 

v.  Rosenberg,  156,  157. 

v.  San  Diego  Flume  Co.,  83. 

v.  Smith,  218,  303. 

v.  State,   372. 

v.  Story,   209. 

v.  White,    228. 

Harris'  Lessee  v.  Burchan,  94. 
Harrison  v.   Bishop,   332,  334. 

v.  Haplin,  305. 

v.  Heflin,   311,  313. 

v.  Lincoln,    151,    259. 

v.  Ray,  521. 

v.  Southampton,   115. 

v.  Wallton,    490,    506. 
Harrison  Wire  Co.  v.  Moore,  113. 
Harrod  v.  Harrod,  115. 
Harry,  The,  468. 
Harshey  v.  Blackmarr,  83,  100. 
Hart   v.    Baltimore    &    O.    R.   Co., 
401,   452. 

v.  Gregg,  517,  519. 

v.  Hart,    117. 

v.  Moulton,  488,  500. 

v.  State,    406. 

v.  Washington      Park      Club, 

269,  433. 
Hartford  L.  &  A.  Ins.  €o.  v.  Gray, 

212. 

Hartman  v.  Young,  96,  97. 
Harttmann  v.   Tegert,   192. 
Hartwell  v.   Root,   91. 
Harvey  v.  Broad,   423. 

v.  Harvey,  515. 

v.  Head,  503. 

v.  Merrill,   225,   412. 

v.  Mount,  179. 

v.  Smith,  561. 

v.  Thorpe,  468,  474. 

v.  Wayne,  382. 


Harvy  v.  Broad,   404,  422. 
Hascall  v.  Whitmore,  126. 
Haskett  v.  Maxey,  520. 
Haskill  v.  Com.,  44. 
Hassell  v.  Hamilton,  104. 
Hasselman  v.  United  States  Mortg. 

Co.,  533. 
Hatch  v.  Bayley,  173. 

v.  Hatch,    179. 

v.  Hatch's  Estate,  222,  303. 

v.  Straight,  301,  302. 
Hatchard  v.  State,  43. 
Hathaway  v.  Clark,  106. 
Hattersley  v.  Bissett,  301,  302. 
Hauer's   Estate,   340. 
Haupt  v.  Simington,  106. 
Haven  v.  Foster,  216. 
Hawes  v.   Burlington,  C.  R.  &  N. 
R.  Co.,  34,  35,  280. 

v.  Draeger,   248,    249. 

v.  State,  196. 
Hawkes  v.  Pike,  122. 
Hawkins     v.     Berkshire     County 
Com'rs,  344. 

v.  Front  St.  C.  R.  Co.,  297,  299. 

v.  Glenn,  497. 

v.  Grimes,  331,  333,  334. 

v.  Hawkins,    212. 

v.  Hoffman,  154. 
Hawley  v.  Bibb,  224. 

v.  Warner,  504. 
Haworth  v.  Gill,  247. 
Hawthorne  v.  State,  201,  202. 
Hay  v.  Peterson,  162,  168. 
Haydock  v.  Haydock's  Ex'rs,  179. 
Hayes  v.  Berwick,  252,  253. 

v.  Douglass  County,  436. 

v.  People,  244. 

v.  Seaver,  503. 

v.  Shattuck,  511. 

v.  Whitall,  306,   310. 
Haynes  v.  Haynes,  299. 


TABLE  OF  CASES. 


61f> 


[REFERENCES  ARE  TO  PAGES.] 


v.  McRae,  165. 

v.  Ordway,   489. 

v.  Raleigh  Gas   Co.,  270. 

v.  Stevens,  543. 
Hays  v.  Askew,  525. 

v.  Gallagher,   278. 

v.  Horine,    149. 

v.  Northwestern   Bank,   400. 

T.  Samuels,    323. 
Hayward  v.  Sedgley,  346. 
Hazard  v.  Griswold,  211. 
Hazell  v.  Tipton  Bank,  557. 
Hazen  v.  Lyndonville  Nat.   Bank, 

206. 
Head    v.    Hargrave,    449,   457. 

v.  Head,    250. 
Heane  v.  Rogers,  565. 
Heard  v.  Hall,  530. 

v.  Lodge,  503. 
Hearne  v.  De  Young,  25. 
Heaston  v.  Cincinnati  &  F.  W.  R. 

Co.,  376,  397,  400,  441. 
Heath  v.  Williams,  346. 
Heathcote's  Divorce  Bill,  432. 
Heaton  v.  Ainley,  431. 
Heck  v.    Martin,   103. 
Heckle  v.  Lurvey,  190. 
Hedden  v.  Roberts,  85. 
Hedderich   v.    State,   431. 
Hefferman  v.  Burt,  470. 
Heffron  v.  Brown,  303.' 
Hefner  v.  Hesse,  94. 
Regard  v.  California  Ins.  Co.,  428. 
Hen  v.     Consolidated  Gas  Co.,  8. 
Heiligmann  v.  Rose,  25. 
Heilman  v.  Com.,  138,  139. 

v.  Shanklin,   19,    39. 
Heinemann   v.    Heard,   16,   18,  32. 
Heisen  v.  Heisen,  551. 
Helms  v.  Austin,  121. 

v.  Green,  162. 
Helm's  Ex'rs  v.  Jones'  Adm'x,  309. 


Hemingway    v.    State,    13,    16,    35, 

74,  93. 

Hemmenway  v.  Towner,  247,  250. 
Hemphill  v.  Holford,  180. 
Hempstead   v.    Johnson,   124,   173, 

175. 

Hendee  v.  Pinkerton,  548. 
Henderson  v.   Baltimore,   122. 

v.  Carbondale    Coal    &    Coke 
Co.,  85,  86,  87. 

v.  Cargill,  236,  238,  242. 

v.  Fox,  143. 

v.  Lewis,  307,  309. 

v.  Louisville,   33. 

v.  Overton,  536,  559. 

v.  Philadelphia   &    R.    R.   Co., 

274,  275. 
Hendricks  v.  Rasson,  123. 

v.  Western  U.  Tel  Co.,  287. 
Hendrickson  v.  Great  Northern  R. 

Co.,  282. 
Hendy    Mach.    Works    v.    Pac.    C. 

Const.  Co.,  462. 
Henley   v.   Johnston,  102. 
Henman  v.  Dickinson,  134. 
Hennell  v.  Lyon,  195. 
Henry   v.   Adey,  411. 

v.  Anderson,   123. 

v.  Conley,  318. 

v.  Davis,   508. 

v.  Dulle,  96. 

v.  Hall,  184,   186. 

v.  Sneed,  129,  130,  539,  558. 
Henry  B.  Hyde,  The,  213,  228,  229, 

289,   292. 

Henry   County  v.   Bradshaw,    122. 
Hensel  v.  Maas,  150. 
Hensley  v.  Tarpey,  402. 

v.  State,  188,  189. 
Henthorn  v.  Shepherd,  416. 
Henwood   v.    State,   34. 
Hepburn  v.  Auld,  348. 


616 


TABLE  OF  CASES. 


[KEFEBENCES  ABE  TO  PAGES.] 


Hepler  v.  State,  44. 
Hering  v.  Chambers,  106. 
Herman  v.  Gunter,  126,  127. 
Herrick  v.   Morrill,  383,  384. 
Herriman    Irr.    Co.    v.    Butterfield 

Min.  Co.,  34,  43. 
Herring  v.   Goodson,   245,  248. 
v.  Wilmington    &    R.    R.    Co., 

272. 
Herrman  v.  Great  Northern  R.  Co., 

29. 

Hertig  v.  People,  387. 
Hervey  v.  Hervey,  235. 
Hesperia  L.  &  W.  Co.    v.  Rogers, 

362. 
Hess    v.    Preferred    M.    M.    Ace. 

Ass'n,  266. 

Hess'  Will,  In  re,  184,  185. 
Hetherington  v.  Kemp,  86. 
Hewes  v.  Glos,  344. 
Hewitt  v.  Jones,  211. 

v.  Morgan,   462. 
Hewlett  v.  Hewlett,  172,  232. 
Heyward    v.    Farmer's    Min.    Co., 

529.  541. 

Heywood  v.  Brooks,  303. 
Hibberd   v.    Smith,   124. 
Hibbs  v.  Blair,  393. 
Hickman  v.  Alpaugh,  231. 
v.  Boffman,   91. 
v.  Upsall,  260. 
Hicks  v.  Steigleman,  345. 
High  v.  State,  199. 
Higham  v.  Vanosdol,   301. 
Highberger  v.   Stiffler,  179,  180. 
Highland    Ave.    &    B.    R.    Co.    v. 

Walters,  439,  447. 
Hight  v.  United  States,  197. 
Higley  v.  Burlington,  C.  R.  &  N. 

R.  Co.,  464. 
Higman  v.  Camody,  282,  283,  284. 
Hildreth  v.  Camp,  190. 


Hiler  v.  People,  239,  244. 
Hill  v.  Bacon,  384. 

•   v.  Baker,  426.  ' 

v.  Chambers,  340. 

v.  Com.,   199. 

v.  Covell,  154. 

v.  Crosby,  354. 

v.  Epley,  564. 

v.  Goolsby,  148. 

v.  Grigsby,  226. 

v.  Huckabee,  545. 

v.  McMichol,   121. 

v.  Owen,   285. 

v.  Reifsnider,  172. 

v.  Spear,  224. 

v.  Sturgeon,  290. 

v.  Syracuse,  B.  &  N.  Y.  R.  Co.. 
214. 

v.  Wand,  560. 

v.  Wilker,  230,  231. 
Hill  Estate  Co.  v.  Whittlesey,  436. 
Hillary  v.  Waller,  348,  350. 
Hilliard  v.  Goold,  111. 

v.  Outlaw,  413. 
Hills  v.  Barnes,  134. 

v.  Goodyear,  27,  28. 

v.  Laming,  524. 
Hiltabiddle  v.  State,  139. 
Hilton  v.   Bachman,   107. 

v.  Bender,  90r  97. 

v.  Roylance,  436. 
Himmelmann  v.  Hoadley,  386. 
Hinckley   v.    Beckwith,    428. 
Hinde  v.  Vattier's  Lessee,  403. 
Hines  v.  Robinson,  518. 
Hingeston  v.  Kelly,  18,  33. 
Hingham   v.   South   Scituate,  147, 

152. 
Hinkle    v.    Southern   R.    Co.,    289, 

291,  294. 

Hinley  v.  Margaritz,  222. 
Hinshaw  v.  State,  24,  65,  161,  166. 


TABLE  OF  CASES. 


617 


[REFERENCES  ABE  TO  PAGES.! 


Hinton  v.  Eastern  R.  Co.,  290,  291. 
Hipsley    v.    Kansas    City,    St.    J. 

&  C.  B.  R.  Co.,  297. 
Hirschfeld  v.   London   B.  &   S.   C. 

R.  Co.,  221. 

Hitchcock  v.  Davis,  166,  321. 
v.  Fortier,  521. 
v.  Hahn,   94. 
v.  Southern  I.   &  T.  Co.,  530, 

531. 

v.  Tyson,  471. 

Hitchcox  v.  Hitchcox,  236,  243. 
Hitchins  v.  Frostburg,  467. 
Kite   v.    Metropolitan   St.   R.   Co., 

8,  298. 

Hitz  v.  Ahlgren,  254,  255. 
Hlx  v.  Whlttemore,  338. 
Hlzer  v.   State,   386. 
Hoag  v.  Place,  355,  359,  363. 
Hoard  v.  State,  166. 
Hoare  v.  Coryton,  119. 
v.  Silverlock,   431. 
Hobart  v.  Cook,  469. 
Hobbs  v.  Parker,  504. 
Hobby  v.  Bunch,  106. 
Hobdy  v.  Jones,  236,  238. 
Hoboken  v.  Pa.  R.  Co.,  542. 
Hobson  v.  Yancey,  503. 
Hock,  Ex  parte,  197. 
Hockaday   v.   Skeggs,   104. 
Hocker  v.  State,  24. 
Hockin  v.   Cooke,  398. 
Hocking,  In  re,  300. 
Hocum   v.    Weitherick,    277,    281. 
Hodgdon  v.  Wight,  324. 
Hodge  v.  Shaw,  506. 

v.  State,  23. 
Hodge's  Case,  23. 
Hodges  v.  Hickey,  175. 

v.  Wilkinson,  36. 

Hodge's  Lessee  v.  Fisher,  330,  335. 
Hodnett's  Adm'x  v.  Pace's  Adm'r 
134. 


Hodsden  v.  Staple,  348. 

Hodsdon  v.  Guardian  L.  Ins.  Co., 

38. 
Hodson  v.  Union  Pac.  R.  Co.,  488, 

500. 

Hoeflinger  v.  Wells,  318,  319. 
Hoeger  v.  Chicago,  M.  &  St.  P.  R. 

Co.,  545. 
Hoene  v.  Pollak,  555,  556. 
Hoerr  v.  Meihofer,  491. 
Hoey  v.  Furman,  345. 

v.  Jarman,   132. 
Hoffman     v.     Simpson,    237,     238, 
242 

v.  State,    383. 

v.  Western  M.  &  F.  Ins.  Co., 

27. 

Hogan  v.  State,  199. 
Hoggatt's  Heirs  v.   Crandall,  505. 
Hogue  v.  Corbit,  94. 
Holbrook  v.  Debo,  520. 

v.  Utica  &  S.  R.,  298. 
Holcomb  v.  Beach,  341. 
Holden  v.  Burnham,  174. 

v.  Scanlin,  104. 
Holder  v.  State,  16,  83. 
Holderness   v.  Baker,   469. 
Holland  v.  Klndregan,  9. 

v.  Long,  360. 

v.  Rogers,  519. 

Hollenbach  v.   Schnabel,  390. 
Hollenberg  v.  Lane,  322. 
Holley  v.  Young,  472,  474. 
Hollingsworth  v.  Thompson,  94. 

v.  Walker,    148. 
Hollister  v.  Cordero,  264. 
Hollos   v.  Morris,  513. 
Holly  v.  Holly,  342,  407,  412,  416. 
Holman  v.  Boyce,  555,  561,  565. 

v.  Burrow,  424. 

v.  Loynes,    183. 

v.  Omaha  &  C.  B.  R.  &  B.  Co., 
553. 


618 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  PAGES.] 


Holmes  v.  Briggs,  320. 
v.  Broughton,  225. 
v.  Detroit,    437. 
v.  Harrington,  405. 
v.  Holmes,  236,  237. 
v.  Holmes,    B.    &    A.    M.    Co, 

206. 

v.  Jones,  466. 
v.  McDonald,  123. 
v.  Trumper,   561. 
Holmes  &  G.  Mfg.  Co.  v.  Holmes 

&  W.  M.  Co.,  546. 
Holt  v.  Brien,  192. 
v.  Parsons,    208. 
v.  Squire,  469. 
v.  Whatley,   279,  281. 
Holthaus  v.  Farris,  225. 
Holton  v.  Sanson,  560,  563. 
Home  F.  Ins.  Co.  v.  Barber,  67. 
Home  Ins.  Co.  v.  Marple,  84,  87. 
Home  Men.  Ass'n  v.  Sargent,  266. 
Homire  v.  Rodgers,  33,  35. 
Hommel  v.  Devinney,  136. 
Hood  v.  Hood,  148. 
Hoodless  v.  Reid,  317. 
Hooker  v.  Greene,  399. 
Hooper  v.  Henry,  522. 
v.  Hooper,  502. 
v.  Howell,    306. 
v.  Moore,  413. 

Hoover   v.   Pennsylvania  R.,   426. 
Hopcraft  v.  Keys,  551. 
Hope  v.   Stone,   519. 
Hopewell  v.  De  Pinna,  253. 
Hopkins  v.   Kansas  City,   S.   J.   & 
C.  B.  R.  Co.,  400. 
v.  Kent,    127. 
v.  Lee,  507,  511. 
v.  Nashville,    C.    &    St.   L.   R. 

Co.,   470. 
v.  North    Western    L.    Assur. 

Co.,  330. 
v.  Ward,  464. 


Hopkinson  v.  Knapp  &  S.  Co.,  432. 
Hopkirk  v.  Page,  312. 
Hopley  v.  Holley,  81. 
Hopper  v.  Demarest,  539. 
v.  Fisher,  102. 
v.  Lucas,  102,  108. 
v.  State,  42. 
Hoppin  v.  Hoppin,  515. 

v.  Tobey's  Ex'rs,  181. 
Hopps  v.  People,  23,  326. 
Horan  v.  Wahrenberger,  102. 

v.  Weiler,  232. 

Horn  v.   Chicago  &  N.  W.  R.  Co., 
397,  398,  404. 

v.  Cole,  563,  568. 
v.  State,   198,  204. 
Hornberger  v.  State,  44. 
Home  v.  State,  24. 
Homer  v.  Harvey,  286. 
v.  State  Bank,  100. 
Hornish  v.  People,  23. 
Horsey   v.    Knowles,   339. 
Horton  v.  Critchfield,  104. 

v.  Kelly,  534,  539. 
Hosford  v.  Nichols,  413. 
Hosier  v.  Beard,  126,  336. 
Hostler's  Adm'r  v.  SkuU.  344. 
Houck's  Ex'rs  v.  Houck,  303. 
Hough  v.  Cook  County  Land   Co., 
546. 

v.  Dickinson,  24. 
Houghtaling  v.  Ball,  228. 

v.  Lloyd,  465. 
Houghton  County  Sup'rs  v.  Rees, 

98. 

Houk  v.  Barthold,  99. 
Houliston  v.  Smyth,  118,  119. 
Houlton  v.  Chicago,  St.  P.,  M.  &  O. 
R.  Co.,  385,  398. 
v.  Nichol,  234. 
Houpt  v.  Houpt,  243. 
House  v.  McCormick,  519,  521. 
Houser  v.  Austin,  160. 


TABLE  OF  CASES. 


619- 


[REFEBENCES  ABE  TO  PAGES.] 


Houstman  v.  Thornton,  257. 
Houston  v.  Blackman,  528. 

v.  Killough,  99. 

v.  Musgrove,  487. 

v.  State,  451. 

v.  Turk,  539. 

v.  Thornton,  39. 

Houston  &  T.  C.  R.  Co.  v.  Dumas, 
451. 

v.  Simpson,    142. 
Hovey  v.  Sebring,  341,  343. 

v.  Woodward,  534. 
Howard  v.  Boorman,  113. 

v.  Glenn,  466,  497. 

v.  Kennedy's  Ex'rs,  501. 

v.  Kimball,  506. 

v.  Moot,  418. 

v.  North,  95. 

v.  State,  42,  199,  203,  258. 
Howarth  v.  Angle,  497. 
Howat   v. ,  Howat's    Ex'r,    16,    332, 

333. 
Howe  v.  First  Nat.  Bank,  511. 

v.  Howe,  330. 

v.  North,  303. 
Howell  v.  Hale,  556. 

v.  Hartford  F.  Ins.  Co.,  27. 

v.  House,   348. 
Rowland  v.  Shurtleff,  306. 
Howry  v.  Eppinger,  126. 
Howser   v.    Cumberland-  &    P.    R. 

Co.,  270,  271. 
Howth  v.  Franklin,  285. 
Hoxie  v.  Finney,  520. 
Hoyle  v.  Cornwallis,  424. 
Hoys  v.  Tribble,  300. 
Hoyt  v.  Beach,  391. 

v.  Casey,  145. 

v.  Hudson,  278,  282. 

v.  McNeil,  413. 

v.  Newbold,  194,   253. 

v.  Russell,  428,  444. 


Hronek  v.  People,  373. 
Hubbard  v.  Barry,  345. 

v.  Haley,  547. 

v.  Knous,  472. 

v.  Norton,  525. 

v.  Shepard,  554. 
Hubble  v.  Fogartie,  126. 
Huchting  v.  Engel,  141. 
Huckman  v.  Fernie,  19,  37. 
Hudson  v.  Hudson,  303. 

v.  Jones,  463. 

v.  Lutz,  303. 

v.  Northern  P.  R.  Co.,  225. 

v.  Wabash    Western    R.    Co.: 

35,  278,  281. 

Hudson  County  v.  State,  96. 
Huey  v.  Gahlenbeck,  269,  271. 
Huff  v.  Austin,  272. 
Huffman  v.  Wyrick,  304. 
Huggins  v.  Daley,  422. 

v.  People,  368,  369. 
Hughes  v.  Debnam,  118. 

v.  Hughes,  309. 

v.  Jones,  506,  512. 

v.  Macfie,  141. 

v.  Meredith,   215. 

v.  Murtha,  185. 
Huguenin  v.  Baseley,  178,  182. 
Hulett  v.  Swift,  286. 
Hulick  v.  Scovil,  124. 
Hull  v.  Augustine,  229. 

v.  Conover's  Ex'rs,  341. 

v.  Chicago,  St.  P.  M.  &  O.  R. 
Co.,  289,  290. 

v.  Rawls,  258. 
Hultz  v.  Gibbs,  193. 
Hummel  v.  Lilly,  306. 
Humphrey  v.  Burnside,  436. 
Humphreys  v.  Budd,  384. 

v.  Finch,  553. 
Hunt   v.    Chosen   Friends,    8,   17£. 

v.  Collins,  170. 


€20 


TABLE  OF  CASES. 


[BEFEBENCES  ARE  TO  PAGES.] 


v.  Com.,  371. 

v.  Elliott,  234. 

v.  Gray,  133,  137. 

v.  Haven,  500. 

v.  Hayes,  193. 

v.  Hunt,  350,  362. 

v.  Johnson,  413. 

v.  Morris,  289. 

v.  Payne,  300. 

v.  Reilly,  560. 

v.  Rhodes,  218. 

v.  Stewart,  195. 

v.  Utter,  344. 
Hunt's  Appeal,  239,  241. 
Hunter,  The,  156. 
Hunter  v.  Davis,  507. 

v.  Hunter,  151,  258,  511. 

v.  New     York,     O.    &    W.     R. 
Co.,    432,    441,    456. 

v.  Walters,  210,  218. 
Huntington     v.     American     Bank, 
472. 

v.  Finch,   135. 

v.  Shute,  17,  128. 
Huntington      County     Com'rs      v. 

Heaston,  487,  491. 
Huntley  v.  Holt,  504. 

v.  Whittier,  50,  62,  84,  86,  87. 
Huntress  v.  Boston  &   M.  R.  Co., 

449,  450. 

Kurd  v.  Brisner,  90. 
Hurlburt  v.  Van  Wormer,  259. 
Hurley  v.  O'Sullivan,  19. 
Hurst  v.  Parker,  39. 
Hurst's    Lessee    v.    McNeil,    123. 

347,  350. 

Husky  v.  Maples,  309. 
Huss,  In  re,  414. 
Huston  v.  Bybee,  365. 

v.  McPherson,  39. 
Hutchings  v.  Ban  Bokkelen,  82. 
Hutchins  v.  Hamilton,  304. 


v.  Kimmell,  115,  227,  245. 
v.  Olcutt,  317. 
Hutchinson  v.  Chicago,  St  P.,  M. 

&  O.  R.  Co.,  214. 
v.  Perley,   345. 
Hutchinson    &    V.    S.    R.    Co.    v. 

Com'rs,  553. 

Huthsing  v.  Bosquet,  216. 
Hutton,  In  re,  256, 
Huyghe  v.  Brinkman,  499. 
Hyde  Park  v.  Canton,  56,  253,  254. 

258. 

Hydrick   v.    Burke,    228,    229. 
Hymes  v.  Estey,  511. 
Hynes  v.  McDermott,  116,  226,  227, 

238,  239,  240,  242. 

I. 

Idaho,  The,  552. 

Ihl  v.  Forty  Second  St.  &  G.  St. 

F.  R.  Co.,  141,  142. 
Ihley  v.  Padgett,  222. 
Illinois  Cent.  R.  Co.  v.  Craig,  214. 
v.  Greaves,  450. 
v.  Houck,  280. 
v.  Mills,  274. 
v.  Phillips,  270,  272. 
Illinois  L.  &  L.  Co.  v.  Bonner,  247. 
Illinois  Trust  &  Sav.  Bank  v.  Pac. 

R.  Co.,  548. 
Imboden  v.  Etowah  &  B.  B.  H.  H. 

Min.  Co.,  545. 

Imbrie  v.  Wetherbee  &  Co.,  420. 
Independence  Ave.   Boulevard,  In 

re,  385. 
Independent  School  Dist.  v.  Rew: 

527. 

Indiana  Bond  Co.  v.  Ogle,  546. 
Indiana,  B.  &  W.  R.  Co.  v.  Greene, 

280. 
Indiana  Ins.  Co.  v.  Brehm,  220. 


TABLE  OF  CASES. 


621 


[REFERENCES  ARE  TO  PAGES.] 


Indianapolis    v.    Consumers'    Gas 

Trust  Co.,  423. 
Indianapolis,    P.    &    C.    R.    Co.    v 

Pitzer,  142. 

Indianapolis  &  C.  R.  Co.  v.  Cald- 
well,   402. 
v.  Case,  437. 
v.  Means,  273. 
v.  Paramore,  275. 
v.  Stephens,  382. 
Indianapolis    &    St.    L.    R.    Co.    v. 

Horst,  278. 
Ingalls  v.  Eaton,  33. 

v.  State,  367. 
Ingham  v.  Primrose,  558. 
Inghram  v.  Nat.  Union,  266. 
Inglis  v.  State,  387. 
Ingraham  v.  Hutchinson,  354,  359 

365. 
Ingram  v.   Colgan,  433. 

v.  State,  386. 

Inhabitants   of  Groton   v.    Inhabi- 
tants of  Lancaster,  85. 
Inland  &  S.  Coasting  Co.  v.  Tol- 

son,   269,   277. 
Inman  v.  Whiting,  103. 
Innis  v.  Campbell,  252. 
v.  Templeton,  556. 
Insurance  Co.  v.  Bennett,  266,  277 
v.  Dunscomb,   304,   312,  314. 
v.  Forcheimer,  407.. 
Insurance   Co.   of  North   America 
v.  Lake  Erie  &  W.  R.  Co.,  292. 
International  Bank  v.  Bowen,  553. 
International    B.    &    L.    Ass'n    v. 

Wall,  113. 
International   &   G.  N.   R.   Co.  v. 

Cocke,  273. 
Inter  the  Parishes  of  St.  George 

&  St.  Margaret,  247. 
Intoxicating  Liquor  Cases,  435. 
Iowa  &  M.  R.  Co.  v.  Perkins,  117. 
Irby  v.  State,  139. 


Irish  v.  Cloyes,  154. 

v.  Newell,  332,  337. 
Irish-American   Bank   v.    Ludlum 

562. 

Irly  v.  Kitchell,  550. 
Iron  R.  Co.  v.  Mowery,  296. 
Irvine  v.  Irvine,  516,  519. 

v.  McKeon,  527. 
Irwin   v.   Backus,   503. 

v.  Scriber,  102. 
Isaacs    v.    Barber,    403,    405,    425, 

427. 
Isaacson  v.  New  York   C.  &  H.  R. 

R,  Co.,  438. 

Isham  v.  Post,  16,  283. 
Isnard  v.  Torres,  561. 
Israel  v.  Benjamin,  471. 
Ivy  v.  Yancey,  88,  97,  119. 

J. 

Jack  v.  Martin,  425. 
Jacks  v.  Dyer,  345. 
Jackson  v.  Allen,  524,  525. 

v.  Astor,  102. 

v.  Bank,   342. 

v.  Camden,  44. 

v.  Christman,  194. 

v.  Cole,  348. 

v.  Com.,  453. 

v.  Demont,   515. 

v.  Denn,  344. 

v.  Edwards,  432. 

v.  Goes,  194,  195. 

v.  Harby,  173. 

v.  Harder,  345. 

v.  Hayner,  211. 

v.  Hlllsborough    Com'rs,    350, 
364. 

v.  Hoffman,  530. 

v.  Irvin,  148. 

v.  Jackson.  116,  236,  237,  23& 
240,  244,  245. 

v.  King,   194,   336. 


•622 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  PAGES.] 


v.  Littell,  519. 

v.  Lodge,  505. 

v.  Love,   341. 

v.  McCall,  347,  349. 

v.  Matsdorf,  302. 

v.  Miller,  348,  349. 

v.  Moore,  348. 

v.  Murray,   348. 

v.  Osborn,   135. 

v.  Pierce,  311. 

v.  Porter,  345. 

v.  Potter,  148. 

v.  Rowell,  531. 

v.  Sackett,  62,  308,  316. 

v.  Shepard,   89,   90. 

v.  State,    165,    232,    369,    371 
372,   400. 

v.  Torrence,  536,  556. 

v.  Town,   344. 

v.  Van  Dusen,  333,  336. 

v.  Wisconsin    Tel.    Co.,    424. 

v.  Wood,    306,    310. 

v.  Woodruff,   535. 

v.  Woolsey,    348. 
Jackson  County  v.  Arnold,  408. 

v.  State,    453. 
Jackson   County   Com'rs   v.    State, 

385. 

Jackson   Paper   Mfg.   Co.   v.   Com- 
mercial Nat.  Bank,  341,  342. 
Jackson  School  Tp.  v.  Hadley,  96. 
Jacksonville,  T.  &  K.  W.  R.  Co.  v. 
Peninsular,  L.,  T.  &  M.  Co.,  274, 
276. 

Jacob  v.  United  States,  80. 
Jacobs,  In  re,  434. 
Jaggar  v.  Winslow,  221. 
James  v.  Biou,  159. 

v.  Chalmers,  127,  341. 

v.  James,  227,  231,  232,  301. 

v.  Wade,    86. 

v.  Wilder,  537. 


v.  Wood,   339. 
Jameson  v.  People,  109. 

v.  Rixey,  312. 
Jamieson  v.  Indiana  Nat.  G.  &  O. 

Co.,   423,    428. 
Janes'  Estate,  246. 
Janeway   v.    Skerritt,   470. 
Janin    v.    London    &    S.    F.    Bank, 

87,  88,  283,  559. 
Jannette  v.  Great  Western  R.  Co., 

474. 
Jarboe  v.  McAtee's  Heirs,  83,  252, 

349. 

Jarrett  v.  Jarrett,  330,  336. 
Jarvis  v.  Aikens,  522. 
v.  Albro,    306,    310. 
v.  Connecticut  M.  L.  Ins.  Co., 

330. 
v.  Northwestern    Mut.    Relief 

Ass'n,  66. 

v.  Robinson,   375,   415. 
v.  Vanderford,  147,  152. 
Jay    v.    Carthage,    97. 
Jefferis  v.   Philadelphia   W.    &  B. 

R.  Co.,  275. 
Jeffers   v.   Jeffers,   462. 

v.  Radcliff,    259. 
Jefferson    v.    Edrington,    540. 

v.  Howell,    346. 

Jefferson  County  v.  Ferguson,  347. 
Jefferson    County    Bldg.    Ass'n    v. 

Heii,   125. 

Jefferys  v.  Bucknell,   525. 
Jeffrie    v.    Robideaux,    143. 
Jeffries   v.   Wiester,   181. 
Jemison    v.    Citizens'    Sav.    Bank, 
549. 

v.  Planters'    &   M.   Bank,  399. 
Jenckes   v.   Probate    Ct,    336. 
Jenkins    v.    Bisbee,    235,    236,   237, 
238. 

v.  Collard,    516. 


TABLE  OF  CASES. 


623 


[REFERENCES  ARE  TO  PAGES.] 


v.  Harvey,  354. 

v.  Jenkins,   53,   54,   242. 

v.  Peckinpaugh,  259,   262. 

v.  Pye,  179,  180. 

Jenney  Elec.  Co.  v.  Branham,  451. 
Jennings  v.  Jennings,  125. 

v.  McConnel,   182. 

v.  Todd,   126. 
Jennison  v.  Hapgood,  232. 

v.  Stafford,   126. 

v.  West    Springfield,    504. 
Jensen  v.  McCorkell,  84,  86. 
Jericho   v.  Underbill,  507. 
Jesse    French    P.    &    O.    Co.    v. 
Forbes,   354,   359,   361,   362,   363 
365,  366. 

Jessup's   Estate,  470. 
Jester  v.   Steiner,  18,  195. 
Jewell  v.  Center,  404. 

v.  Parr,  7. 

Jewett  v.  Hussey,  366. 
Jochumsen   v.   Suffolk   Sav.   Bank, 

263. 

Joeckel  v.  Easton,  524,  533. 
John   Hancock    M.   L.   Ins.   Co.    v. 

Moore,    266. 
Johns     v.     North     Western     Mut. 

Relief  Ass'n,  267,  432. 
Johnson  v.  Alabama  &  V.  R.  Co.. 
291. 

v.  Baytup,    551. 

v.  Bowman,   37. 

v.  Branch,    517,    530. 

v.  Chicago    &    N.   W.    R.    Co., 
339. 

v.  Farley,  125. 

v.  Farwell,    232. 

v.  Frisbie,    343. 

.v.  Hoyle,  302. 

v.  Hudson   River   R.   Co.,   278, 
280,   282,    432. 


v.  Indianapolis  Common  Coun- 
cil, 400. 

v.  Ireland,   349. 

v.  Johnson,  257,  259,  517,  520, 
534. 

v.  Jordan,   358. 

v.  Lancaster,  345. 

v.  Lines,    144. 

v.  McMurry,    129,    130. 

v.  Marlborough,  136. 

v.  Merithew,     253,     256,     259, 
263. 

v.  Mitchell,   341. 

v.  North    Western    Mut.    Life 
Ins.  Co.,  144. 

v.  Powers,   467. 

v.  Richardson,  285. 

v.  Robertson,   431. 

v.  State,   196. 

v.  Stivers,    331. 

v.  Superior  R.  T.  R.  Co.,  451. 

v.  Ter,  369. 

v.  Thompson,    525. 
Johnson-Brjnkman         Commission 

Co.  v.  Cent.  Bank,  318. 
Johnston  v.  Allen,  128. 

v.  Barrills,  88,  317. 

v.  Hedden,  406. 

v.  Wilson,    80. 
Johnstone   v.   Richmond   &   D.    R. 

Co.,  214,  290. 

Joiner  v.  Ocean  S.  S.  Co.,  32. 
Joliet  v.  Shufeldt,  433. 
Jonas  v.   Field,  38. 
Jones  v.  Ames,  234. 

v.  Aspen    Hardware   Co.,    Ill, 
546. 

v.  Bond,  62. 

v.  Brooklyn    L.    Ins.   Co.,   37. 

v.  Cincinnati  &  S.  M.  R.  Co., 
214. 

v.  Clifford,    219. 


624 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  PAGES.] 


v.  Colvin,  144. 

v.  Columbia  &  G.  R.  Co.,  273. 

v.  Easley,  345. 

v.  Edwards,  100. 

v.  Fales,  400,  441. 

v.  Gale's   Curatrix,   388. 

v.  Gallatin   County,    526. 

v.  Gilbert,  115. 

v.  Gorham,  331. 

v.  Granite    State   F.   Ins.    Co., 

13,  17,  18. 
v.  Greaves,   25,   28. 
v.  Hoar,   472. 
v.  Hunter,  237. 
v.  Jones,    195,    239,    240,    242, 

330,  341. 

v.  Jones'  Heirs,  502. 
v.  King,  517,  518,  530,  531. 
v.  Knauss,    158,    169. 
v.  Lake    View,    382,    387,    400. 
v.  Lloyd,  181. 
v.  McLeod,   232. 
v.  Manufacturing  &   Inv.   Co.: 

268. 
v.  Merchants'  Nat.  Bank,  392, 

456. 

v.  Morris,  544. 
v.  Muisbach,  93. 
v.  New  York  L.  Ins.  Co.,  119. 
v.  Old  Dominion  Cotton  Mills, 
470. 

v.  Overstreet,  406. 

v.  Pashby,  33. 

v.  People,  23,  326. 

v.  Perkins,    513. 

v.  Reddick,  225,  236,  245. 

v.  Reese,    540. 

v.  Simpson,    16,    173. 

v.  Stevens,  12,  16. 

v.  Swayze,  125. 

v.  United  States,  34,  381,  387 
408,  409,  441,  445. 


v.  United    States    Mut.    Ace. 

Ass'n,  35,  38. 
v.  Vert,   498. 
v.  Weathersbee,   506. 
v.  Westcott,  127. 
Jones'  Adm'rs  v.  Nunn,  345. 
Joost  v.  Craig,  42. 
Jorden  v.  Money,  561,  562,  567. 
Joseph  B.  Thomas,  The,  161. 
Joske  v.  Irvine,  8. 
Joy  v.  Diefendorf,  129. 

v.  Winnisimmet  Co.,  299. 
Joyce  v.  Joyce,  386. 
Judge    of     Probate     v.     Sulloway: 

503. 
Judson   v.    Giant   Powder   Co.,   60, 

270,   272,  275,  276. 
Junction  R.  Co.  v.  Ashland  Bank, 

401. 

Juneau  v.   Stunkle,   467. 
Justice  v.  Lang,  53. 
Juzan  v.  Toulmin,  172. 

K. 

Kagel  v.  Totten,  211. 
Kahn  v.  Traders'  Ins.  Co.,  25. 
Kaine  v.  Weigley,  18,  175,  176,  177. 
Kallman    v.    United    States    Exp. 

Co.,   290,  292. 
Kane  v.  Hibernia  Ins.  Co.,  25,  29. 

v.  Johnston,   45. 
Kansas    Cent.   R.    Co.  .v.    Fitzsim- 

mons,    142. 
Kansas   City,  Ft.   S.   &  G.  R.  Co. 

v.    Burge,    381,    382,    385. 
Kansas   City,   M.   &  B.  R.  Co.    v. 

Phillips,  432. 

Kansas  Mill  Owners'   &  Manufac- 
turers'  M.   F.  Ins.   Co.  v.   Ram- 

melsberg,  24. 
I  Kan.  Mut.  L.  Ins.  Co.  v.  Coalson, 

131,   133,  134. 


TABLE  OF  CASES. 


625 


[REFERENCES  ARE  TO  PAGES.] 


Kansas  Pac.  R.  Co.  v.  Dunmeyer 
516. 

v.  Miller,  263,  264. 
v.  Reynolds,  292. 
Kan.    Val.  Nat.    Bank    v.  Rowell 

548. 
Kansas   &   A.   V.   R,   Co.   v.   Fltz 

hugh,  468. 
Kaolatype  Engraving  Co.  v.  Hoke 

421. 

Kaples  v.  Orth,  271. 
Karen's  Estate,  343. 
Karst  v.  St.  Paul  S.  &  T.  F. 

R.   Co.,  39. 

Katzer  v.  Milwaukee,   436. 
Kaufman  v.   Caughman,  152,  334. 
v.  State,  203. 
v.  Stone,   152. 
Kavanagh  v.  Wilson,  9. 
Kay   v.    Metropolitan    St.    R.    Co.: 
18,   296. 

v.  Pennsylvania   R.    Co.,    141. 
Keane  v.   Cannovan,   89,  90. 

v.  Fisher,   503. 
Kearney  v.  King,  382. 

v.  London  B.  &  S.  C.  R.  Co., 

271. 

Keating  v.  People,  368. 
Keator  v.   Scranton   Traction  Co. 

296. 

Keats  v.  Hugo,  365. 
Keech  v.  Rinehart,  261. 
Keeler,  In  re,  394,  410,  411. 
Keene  v.  Deardon,  348. 
Kehler  v.  Schwenk,  142. 
Keith   v.   State,  45. 
Kelch  v.   State,  22,  327. 
Kelham  v.  Steamship  Kensington, 

292. 
Keller  v.  Goodrich  Co.,  206. 

v.  Stuck,  254. 
Kelley   v.   Jenness,  517,   530. 


v.  Kelley,    105,   225,   228,   229. 
v.  Owens,  32. 
v.  Story,  427. 
Kellogg  v.  Curtis,  212. 
v.  Dickinson,  306. 
Kelly  v.   Drew,   151,  258. 
v.  Dutch  Church,  496. 
v.  Pittsburgh,  C.,  C.   &  St.  L. 

R.  Co.,  356. 
v.  Settegast,  215. 
v.  State,   526. 
v.  Thuey,  134. 
Kempe's   Lessee  v.  Kennedy,  101, 

102. 

Kenck  v.  Parchen,  503. 
Kendall,  Ex  parte,  197. 
Kendall   v.   Boston,   268,   271. 

v.  Brownson,   304. 
Kendrick  v.  Dellinger,  122. 

v.  Latham,    95,   132. 
Kennedy  v.  Com.t  393. 

v.  First  Nat.  Bank,  539. 

v.  McCartney's      Heirs,      516, 

536. 

v.  Moore,  134. 
Kennett  v.  Chambers,  409. 
Kenney    v.    Gillet,    206. 
v.  Greer,   100. 
v.  Phillipy,    506. 
Kenosha  Stove  Co.  v.  Shedd,  392. 
Kent  v.  Bongartz,  208. 

v.  White,  19,  34,  41,  304. 
Kentucky    Lumber    Co.    v.    Green, 

113. 

Kenyon  v.  Farris,  193. 
Kepp  v.  Wiggett,  525,  526. 
Keppel's  Adm'rs  v.  Petersberg  R. 

Co.,  406. 
Kepperly  v.  Ramsden,  280. 
Kerbough    v.    Vance,    532. 
Kercheval  v.  Trlplett's  Heirs,  537. 


626 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  PAGES.] 


Kerkow  v.  Bauer,  435. 
Kermott  v.  Ayer,  228,  406,  407. 
Kern  v.  Howell,  121,  301. 
Kernochan  v.  Murray,  67. 
Kerns  v.  Perry,  420. 
Kerr  v.   Farish,   345. 

v.  Forgue,    142. 

v.  Freeman,    32. 
Kessel  v.  Albetis,  396. 
Ketchum  v.  Schicketanz,  533. 

v.  Thatcher,    489. 
Keyser  v.  Hitz,  386. 

v.  Rice,  206. 
Kibler  v.  Com.,  367,  370. 
Kidd  v.  Fleek,  26. 
Kidder  v.  Blaisdell,  381,  390,  536. 

v.  Stevens,  52,  147. 
Kilburn  v.  Adams,  362,  363. 
Kile  v.  Yellowhead,  384,  431. 
Kilgour  v.  Miles,  424. 
Killebrew  v.  Murphy,  427. 
Killpatrick  v.   Frost,   81. 
Kilpatrick  v.  Brashear,  308,  313. 

v.  Com.,  393. 

v.  Kansas  City  R.  Co.,  391. 
Kilpatrick-Koch  D.  G.  Co.  v.  Box, 

467. 

Kimball,  The,  316. 
Kimball  v.  Blaisdell,  517,  530,  532. 

v.  Fisk,   102. 
Kimmell  v.  Skelly,  211. 
Kimmish  v.  Ball,   434. 
Kindel  v.  Le  Bert,  392. 
King  v.  American  Transp.  Co.,  381, 
428. 

v.  Chase,  508,  512. 

v.  Colvin,   32. 

v.  Doolittle,  216,  219. 

v.  Gallun,   420. 

v.  Gilson,  522. 

v.  Hawkins,  232. 

v.  Kent's  Heirs,  382. 

v.  King,  172,  184,  306,  331,  335. 


v.  Luffe,  423. 

v.  Milson,  130. 

v.  Norman,  495,  503. 

v.  Paddock,  257. 

v.  Portland,    90. 

v.  Rea,   520,   540. 

v.  Root,  207,  208. 

v.  Shepard,  473. 

v.  State,  23,  204,  326,  329,  370- 

v.  Sutton,  453. 
King  County  v.  Ferry,  441. 
King's  Adm'r  v.  Kelly,  303. 
King's  Ex'r  v.  Coulter's  Ex'r,  309. 
Kingham  v.  Robins,  471. 
Kingman  v.  Graham,  558,  563,  566, 

568. 

Kingsland  v.  Roberts,  305. 
Kingston  v.  Lesley,  347. 
Kingston  upon  Hull  v.  Horner,  108. 
Kinman  v.  Cannefax,  321. 
Kinnear  v.  Lowell,  520. 
Kinney  v.  Dodge,  221. 

v.  Flynn,  194. 

v.  Koopman,  272,  420. 

v.  Kruse,  129. 

v.  Springfield,  157. 

v.  South   &   North  A.  R.   Co., 
303. 

v.  Whiton,  561. 
Kinsler  v.  Holmes,  306,  308. 
Kinsman's  Lessee  v.  Loomis,  519. 

534. 

Kinyon  v.  Duchene,  152. 
Kip   v.  Brigham,  493. 
Kipp  v.  Lamoreaux,  175. 
Kirby  v.  Lewis,  387. 

v.  Tallmadge,  160. 
Kircher  v.  Milwaukee  M.  Mut.  Ins. 

Co.,  161. 
Kirchman    v.    Standard    Coal    Co., 

568. 

Kirchner  v.  Lewis'  Adm'x,  321. 
Kirk  v.  Folsom,  289,  292. 


TABLE  OF  CASES. 


627 


[REFERENCES  ARE  TO  PAGES.] 


Kirkaldie  v.  Larrabee,  517. 
Kirkland  v.  Dinsmore,  214. 
Kirkpatrick's  Ex'r  v.  Langphier. 

312. 

Kirkwood  v.  Hoxie,  149. 
Kisling  v.  Shaw,  182. 
Kisten  v.  Hildebrand,  285. 
Kitner  v.  Whitlock,  16. 
Kitzmlller  v.  Van  Rensselaer,  535 
Klass  v.  Detroit,  565. 
Kleckner  v.  Turk,  546. 
Kleeb  v.  Bard,  135. 
Klein  v.  Gehrung,  365. 

v.  German  Nat.  Bank,  11,  133, 

136,  137. 

v.    Laudman,    151,    258. 
Kleinert  v.  Ehlers,  246. 
Kline  v.  Baker,  172,  412. 
v.  Kline,  180. 
v.  L'Amoureux,  145. 
Kloke  v.  Martin,  303,  304. 
Klumpke  v.  Baker,  516. 
Knapp  v.  Runnals,  304. 
Knapp,  S.  &  C.  Co.  v.  National  M. 

P.  Ins.  Co.,  232. 
Knickerbocker  v.  People,  369. 
Knickerbocker     L.     Ins.     Co.     v 

Peters,  330. 

Knight  v.   Clements,  40,  134. 
v.  Heaton,  355,  356. 
v.  Macomber,  314. 
v.  Pugh,  127. 
v.  Thayer,  522,  540. 
Knights  v.  Piella,  284. 
Knisely  v.  Sampson,  62,  118. 
Knoop  v.  Kelsey,  462. 
Knott  v.  Whitfleld,  33. 
Knowles  v.  Knox,  184,  334. 
v.  People,  166. 
v.  Scribner,  26. 

Knox  v.  Eden  Musee  Am.  Co.,  559. 
v.  Williams,   130. 


Knox's  Appeal,  331,  334. 

Knox  County  v.  Ninth  Nat.  Bank, 

91.  96. 
Knox   County   Com'rs  v.  Johnson, 

82. 

Knoxville  Nat.  Bank  v.  Clarke,  561. 
Kobs  v.  Minneapolis,  80. 
Koenig  v.  State,  394,  400. 
Kohn  v.  Marsh,  474. 
Kokes  v.  State,  407,  408. 
Konitzky  v.  Meyer,  494,  495. 
Koones  v.  District  of  Columbia,  318. 
Koontz  v.  Oregon  R.  &  N.  Co.,  275, 

276. 

Kosminisky  v.  Goldberg,  189,  190. 
Kostenbaden  v.  Spotts,  216. 
Kraker  v.  Byrum,  145. 
Krathwohl  v.  Dawson,  562. 
Kreitz  v.  Behrensmeyer,  96,  97. 
Kretschmar  v.  Meehan,  384. 
Krier's  Private  Road,  359. 
Kuh  v.  Garvin,  125. 
Kuhn  v.  Stansfleld,  340. 
Kunkel  v.  Spooner,  341,  342. 
Kunze  v.  Kunze,  104. 

L. 

Lacey  v.  Hill,  158. 
Lacrpix  v.  Lyons,  494. 
Lacroix  Fils  v.  Sarrazin,  418. 
Lacy  v.  Johnson,  550. 
Lady    Superior   of   C.   N.  of   Mon 

treal  v.  McNamara,  124. 
Lafayette  v.  Wortman,  33. 
Lafayette  Bridge  Co.  v.  Olson,  450. 
Lafayette  &  I.  R.  Co.  v.  Ehman,  33. 
Laflin  &  R.  P.  Co.  v.  Sinsheimer. 

126. 

La  Grange  v.  Chapman,  381. 
Laidley  v.  Cummings,  396. 
Laing  v.  Colder,  296. 
Lainson  v.  Tremere,  525. 


628 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  PAGES.] 


Laird  v.  Eichold,  285. 
v.  Railroad,  274. 
Lake  v.  Hancock,  550. 
v.  King,  389. 
v.  Minn.  Masonic  Relief  Ass'n, 

43. 

v.  Reed,  130. 
v.  Tysen,    321. 

Lake  County  v.  Graham,  524. 
Lake  Erie  &  W.  R.  Co.  v.  Rooker, 
470. 

v.  Whitham,  122. 
Lake  Merced  Water  Co.  v.  Cowles, 

391. 

Lakemeyer's   Estate,   431. 
Lake  Ontario  Nat.  Bank  v.  Judson, 

20,  34. 

Lake  Shore  &  M.  S.  R.  Co.  v.  Mil- 
ler, 432,  438. 

v.  Rosenzweig,  271. 
Lakin  v.  Lakin,  256. 
Lalone   v.    United    States,    25. 
Lamar  v.  Micou,  397. 

v.  State,  202. 

Lamb  v.  Camden  &  Amboy  R.  &  T. 
Co.,  291,  292. 
v.  Crosland,  358,  360. 
v.  Western  R.  Corp.,  284. 
Lambert  v.   Alcorn,   232. 
Lambie's  Estate,  In  re,  158,  169. 
Lamm  v.  Chicago,  St.  P.,  M.  &  O. 

R.  Co.,  93. 

Lamont  v.  Stimson,  486. 
Lamoureux  v.  New  York,  N.  H.  & 

H.   R.   Co.,  432,  450. 
Lamphire  v.  Cowan,  108. 
Lampton  v.  Haggard,  406,  430. 
Lamson   Consolidated    Service   Co. 

v.  Siegel-Cooper  Co.,  429. 
Lancaster   v.   Washington    L.    Ins. 
Co.,  256,  259,  262. 


Lancaster  Mills  v.  Merchants'  Cot- 
ton Press  Co.,  116,  282,  283,  284, 
292. 

Lanctot  v.  State,  116. 
Land  v.  Keirn,  507. 

v.  Patteson,    386. 
Lander   v.   Arno,    512. 
Landis  v.   Hamilton,  493. 
Landon  v.  Townshend,  499. 
Lane,   Ex  parte,   409. 
Lane  v.  Crombie,  280. 

v.  Dayton  C.  &  I.  Co.,  144. 

v.  Farmer,   323. 

v.  Harris,  397. 

v.  Schlemmer,  557. 

v.  State,  199. 

v.  Spokane  Falls  &  N.  R.  Co., 

166. 

Lane's  Case,  385,  392. 
Lanfair  v.  Thompson,  180. 
Lanfear  v.  Mestier,  378,  288,  426. 
Langan  v.  Sankey,  544. 
Langdon  v.  Doud,  554,  562. 
Langford  v.  Selmes,  517. 
Langley  v.   Oxford,  472. 

v.  Sneyd,   348. 

Langston  v.  Shands,  305,  312,  315. 
Langtry  v.  State,  244. 
Lanier  v.  Booth,  354,  357,  359,  361, 

363,  366. 

Lanter  v.  McEwen,  26. 
Lantis  v.  Davidson,  335. 
Lapping  v.  Duffy,  549. 
Lapsley  v.  Grierson,  240,  252. 
La  Rose  v.  Logan  sport  Nat.  Bank, 

441. 
Larsen  v.  Breene,  319. 

v.  Hansen,   303. 
Larum  v.  Wilmer,  498. 
Las  Caygas  v.  Larionda's  Syndics, 
411. 


TABLE  OP  CASES. 


629 


[BEFEBENCES  ARE  TO  PAGES.] 


Lash  v.  Von  Neida,  305. 
Lasher  v.  State,  418. 
Latham  v.  Udell,  185. 
Lathrop  v.  Stuart,  107. 
Latimer   v.    Trowbridge,   310,   314. 
Latino  v.  Clements,  502. 
Latta  v.  Tutton,  106. 
Lauderdale  Peerage,  The,  115. 
Laughlin  v.  Calumet  &  C.  Canal  & 
Dock  Co.,  121. 

v.  Chicago    &    N.    W.    R.    Co., 

294. 

Laune's  Succession,  93. 
Laurence    v.    Laurence,    227,    239. 
Lavalle  v.  People,  399. 
Law  v.  Com.,  138,  139,  140. 

v.  Woodruff,   165. 
Lawrence  v.  Beaubien,  66,  219. 

v.  Green,  298. 

v.  Haynes,  491. 

v.  Hunt,  508,  512,  513. 

v.  Jarvis,  1QO. 

v.  Minturn,    289. 
Lawrence  Bank  v.  Raney  &  B.  Iron 

Co.,   86. 

Lawry  v.  Williams,  531. 
Lawson  v.  Sherwood,  170. 
Layman's  Will,  In  re,  332,  334. 
Lazarus  v.  Phelps,  148. 
Lazier  v.  Westcott,  408,   409,  411, 

417. 
Lea  v.   Lea,   513. 

v.  Polk  County  Copper  Co.,  93. 
Leach  v.  Hall,  151,  256. 

v.  Hill,    468. 

v.  Nichols,    212. 
Leache  v.  State,  22,  328,  338. 
Leake  &  W.  O.  House  v.  Lawrence, 

502. 

Leame  v.  Bray,  404. 
Learned  v.  Corley,  253. 

v.  Hall.  161. 


Leas  v.  Walls,  561. 

Leather  Mfrs.  Bank  v.  Morgan,  559, 

565. 
Leavitt  v.  Oxford  &  G.  S.  M.  Co., 

113. 

Leazure  v.  Hillegas,  546. 
Le  Barren   v.   East  B.   Ferry   Co., 

299. 

Le  Brun  v.  Le  Brun,  257. 
Lecomte  v.  Tonduze,  358. 
Leconfield  v.  Lonsdale,  354. 
Ledens  v.  Schumers,  322. 
Lee    v.    Chillicothe    Branch   Bank, 
440. 

v.  Fletcher,    122. 
v.  Heath,    466. 
v.  Lee,  159. 
v.  Murphy,    194. 
v.  Pearce,  24,  51. 
v.  Troy  Citizens'  Gas  Light  Co 

279. 

Lee's  Will,  338. 
Leeming   v.    Skirrow,   530. 
Leese  v.  Clark,  159. 
Leete  v.  Gresham  Life  Ins.   Soc. 
19,  37,  41. 

v.  State  Bank,  558. 
Leger  v.  Doyle,  91. 
Legg  v.  Horn,  354,  359,  366. 
Legge   v.   Edmonds,   246,  247,   250, 

251. 

Leggett  v.  Cooper,  471. 
Leggott  v.  Great  Northern  R.  Co., 

499. 
Lehigh  Valley  R.  Co.  v.  McFarlan 

358. 

Lehman  v.  McQueen,  18,  305. 
v.  Schackleford,  221. 
v.  State,  372, 

v.  Tallassee  Mfg.   Co.,  126. 
Leighton  v.  Morrill,  49. 
v.  Orr,  181,  182. 


630 


TABLE  OF  CASES. 


[BEFEBENCES  ABE  TO  PAGES.] 


Leiper  v.  Brwin,  309. 

Leitch    v.    Union    R.    Transp.    Co., 

213. 
Leland  v.  Eckert,  194. 

v.  Wilkinson,   398. 
Le  Lievre  v.  Gould,  561. 
Le  Louis,  414. 
Leman   v.   Manhattan  L.   Ins.   Co., 

266,  267. 
Lenahan  v.   People,  382,   384,  424; 

449. 

Lennig  v.  Ocean  City  Ass'n,  526. 
Lennon  v.  Rawitzer,  268,  276. 
Lent  v.  New  York  &  M.  R.  Co.,  304. 
Lentz  v.  Wallace,  507. 
Leo  v.   St.   Paul,  M.  &  M.  R.   Co., 

294. 

Leonard  v.  Columbia  S.  N.  Co.,  226; 
228. 

v.  Hendrickson,  289. 

v.  Leonard,    359. 

v.  Olson,  119. 

v.  Sparks,  89,  107. 

v.  Ter.,   24,   161. 
Lepiot  v.  Browne,  196. 
Leport  v.  Todd,  148. 
Lerow  v.  Wilmarth,  173. 
Lesan  v.  Maine  Cent.  R.  Co.,  280. 
Leslie  v.  State,  371. 
Lester  v.  Jewett,  324. 
Letcher  v.  Bates,  137. 
Letson  v.  Roach,  522. 
Levering  v.  Shockey,  541. 
Levy  v.   Shurman,  102. 

v.  State,  399. 

Lewenberg  v.  Hayes,  559. 
Lewis  v.  Baird,  337. 

v.  Clarendon,  111. 

v.  Conrad  Seip  Brew.  Co.,  177. 

v.  Harris,    425. 

v.  Headley,  224. 

v.  Jones,  220. 


v.  Lichty,  559. 

v.  McClure,  404. 

v.  Mobley,   253. 

v.  People,  26. 

v.  Portland,   425. 

v.  Schwenn,   310,    316. 

v.  State,  202,  383. 

v.  Watson,   120,   121,   135,   533. 

v.  Wintrode,  390. 
Lewis'  Trusts,  In  re,  259. 
Lex's  Appeal,  107. 
Lexington  &  O,  R.  Co.  v.  Bridges, 

40. 

Lichtenberger  v.  Graham,  228,  229. 
Lickbarrow  v.  Mason,  560. 
Lieb  v.  Craddock,  19. 
Life  &  Fire  Ins.  Co.  v.  Mechanic 

F.  Ins.  Co.,  170. 

Ligowski  Clay-Pigeon  Co.   v.  Amer- 
ican Clay-Bird  Co.,  429. 
Lilienthal's     Tobacco     v.     United 

States,  47,  206. 
Lillibridge  v.  McCann,  450. 
Lillstrom   v.   Northern   P.    R.    Co., 

278. 
Lilly  v.  People,  23,  326. 

v.  Waggoner,  330,  336. 
Linck  v.  Kelley,  430. 
Lincoln   v.    Battelle,   410. 

y.  First  Nat.  Bank,  495. 

v.  French,  62,  350. 

v.  Gay,   566. 

v.  Morrison,  232. 

v.  Power,  432. 

v.  Thompson,  345. 
Lincoln  Nat.  Bank  v.  Butler,  465. 

v.  Virgin,   487. 
Lincoln  St.  R.  Co.  v.  McClellan,  295. 
Lind  v.  Lind,  148. 
Lindley  v.  Lindley,  26. 
Lindner  v.  St.  Paul  F.  &  M.  Ins. 
Co.,  467. 


TABLE  OF  CASES. 


631 


[REFERENCES  ABE  TO  PAGES.] 


Lindsay  v.  Cooper,  558. 
v.  Freeman,  520,  522. 
v.  Jones,  526. 
v.  Williams,  390. 
Lindsey  v.  Attorney  General,  386. 

387. 
Lindsley  v.  Chicago  M.  &   St.  P. 

R.  Co.,  290. 

Lingonner  v.  Ambler,  565. 
Linkauf  v.  Lombard,  8. 
Linn  v.  Chambersburg,  233. 

v.  Wright,    176. 

Linney  v.  Wood,  525,  528,  534. 
Linscott  v.  Trask,  339,  343. 
Lipscomb  v.  Postell,  490,  503. 
Lipscombe  v.   Holmes,  471. 
Lisbon  v.  Lyman,  18,  29,  30,  32,  43, 

47,  65,  67. 

Lishey  v.  Lishey,  340. 
Lisloff  v.  Hart,  301. 
List  v.  Rodney,  299. 
Littell    v.  Fitch,  131. 
Little  v.  Boston  &  M.  R.  R.,  289. 
v.  Herndon,  132. 
v.  Little,  336,  338. 
v.  Mills,   130. 
v.  Thompson,  32. 
v.  Wingfield,  356. 
Littlefield   v.   State,   66. 
Little   Pittsburg   Consol.   Min.   Co. 
v.  Little  Chief  Consol.  Min.  Co., 
42,  160. 

Little  Rock,  M.  R.  &  T.  R.  Co.    v. 
Leverett,  279. 

v.  Talbot,  292. 

Little  Rock  &  Ft.  S.  R.  Co.  v.  Eu- 
banks,  279. 
v.  Finley,  273. 
v.  Miles,  297. 

Littleton   v.   Richardson,   478,   494, 
495. 


Liverpool  &  G.  W.  Steam  Co.  v. 
Phenix  Ins.  Co.,  404,  412,  416, 
418. 

Uvett  v.  Wilson,  350,  356. 
Livingston  v.  Arnoux,  119. 
Livingston's   Appeal,   19,   183,  331. 
Lloyd  v.  Barr,  498. 

v.  Bunce,  174. 

v.  Deakin,  253,  262. 

v.  Gordon,   349. 

v.  Guibert,  227. 

v.  Matthews,  415,   457. 

v.  Sullivan,  97. 
Loan   &  Exch.  Bank  v.  Peterkin, 

34. 

Lochenmeyer  v.  Fogarty,  317. 
Locke  v.  First  Div.  of  St.  P.  &  P. 
R.   Co.,  273. 

v.  White,  520. 

Lockett's  Adm'x  v.  James,  539. 
Lockhard  v.  Beckley,  174. 
Lockhart  v.  Locke,  105,  149. 

v.  White,  258. 
Lockwood  v.  Bull,  153. 

v.  Rose,  171. 
Loeb  v.  Richardson,  425. 
Logan  v.  Gardner,  556. 

v.  McAllister,  110. 

v.  Mathews,  284. 

v.  Moore,  531. 

v.  Williams,  100. 
Lohman  v.  State,  405,  430. 
Lomax  v.  Holmden,  250. 
London    Chartered   Bank    v.    Lem- 

priere  L.  R.,  171. 

London  &  N.  W.  R.  Co.  v.  Commis- 
sioners, 355. 
Long  v.  Clegg,  308,  312. 

v.  Crosson,  556. 

v.  Georgia  Pac.  R.  Co.,  546. 

v.  Mulford,  179. 


632 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  PAGES.] 


v.  Pennsylvania  R.  Co.,  288. 

v.  Pruyn,   425. 

v.  State,  166. 

v.  Straus,  308,  309,  321. 

v.  Wilson,    497. 
Longabaugh  v.  Virginia  City  &  T. 

R.  Co.,  274. 
Longenecker    v.    Pennsylvania    R. 

Co.,  278. 

Long  Island  R.  Co.  v.  Conklin,  537. 
Longshore    Print.    Co.    v.    Howell, 

465. 
Loomis  v.  Griffin,  458. 

v.  Lane,  562. 

v.  Pingree,  122,  123. 

v.  Youle,  343. 
Lopez  v.  Andrew,  349. 
Lord  v.  Bigelow,  111. 
Loree  v.  Abner,  397. 
Lorillard  v.  Clyde,  234. 
Lorinier   v.   St.   Paul   City  R.   Co., 

279. 
Loring  v.  Steineman,  150,  253,  260, 

300. 

Lorscher   v.    Supreme  Lodge,   463. 
Lostutter  v.  Aurora,  96. 
Lot  v.  Thomas,  525. 
Lothrop  v.  Foster,  540. 
Loubat  v.  Kipp,  125. 
Loud  v.  Merrill,  84. 
Louden  v.  Walpole,  195. 
Louis  v.  State,  430. 
Louisiana   Bank  v.   United   States 

Bank,  130. 

Louisville  v.  Hyatt,  67. 
Louisville  Bank  v.  Trustees  of  Pub- 
lic Schools,  253,  300. 
Louisville,   N.    A.    &    C.   R,   Co.   v. 
Faylor,  296. 

v.  Hendricks,  297. 

v.  Snyder,  298. 

v.  Thompson,  13,  295. 


Louisville,  N.  O.  &  T.  R.  Co.  v. 
New  Jersey  &  C.  R.  Co.,  275, 
278. 

Louisville  &  N.  R.  Co.  v.  Allen's 
Adm'r,  270,  272. 

v.  Binion,  8. 

v.  Boland,  438. 

v.  Brinckerhoff,  424. 

v.  Brownlee,    213. 

v.  Hall,  278. 

v.  Manchester   Mills,   292. 

v.  Marbury    Lumber    Co.,    54, 
.274,  276. 

v.  Reese,    274. 

v.  Williams,    228. 
Louisville,  etc.,  R.  Co.  v.  Stephens, 

514. 
Love  v.  Dickerson,  20. 

v.  Dilley,  158. 

v.  Bdmonston,  146,  149. 

v.  Francis,   500,   501. 
Lovej'oy  v.  Murray,  493. 
Lovell  v.  Payne,  43. 
Loveless  v.  State,  435. 
Lovelock  v.  Gregg,  304. 
Low  v.  Bartlett,  502. 

v.  Bouverie,  554. 

v.  Hanson,  402. 
Lowden  v.  Schoharie  County  Nat. 

Bank,    561. 
Lowe  v.   Bliss,   407. 

v.  Lowell,  310. 

v.  Massey,  162,  165. 
Lowell  v.  Daniels,  556. 

v.  Todd,  158. 
Lower  Alloways   Creek  v.   Moore, 

503. 
Lower  Latham  Ditch  Co.  v.  Louden 

Irr.  C.  Co.,  493,  559,  566. 
Lowndes  v.  Chisholm,  220. 
Lowry  v.  Beckner,  176. 

v.  Coster,  236. 


TABLE  OF  CASES. 


633 


[REFERENCES  ARE  TO  PAGES.] 


v.  Erwin,  102. 

v.  Fisher,  174. 
Lucas  v.  Baldwin,  131. 

v.  Beebe,  523. 

v.  Brooks,  156,  158. 

v.  Governor,    503. 

v.  Hunt,  32,  33. 

v.  Ladew,  228,  229. 

v.  North  B.  &  T.  R.  Co.,  279. 

v.  San  Francisco,  402. 

v.  White  Line  Trans.  Co.,  548. 
Luce  v.  Dorchester  Mut.  Fire  Ins. 

Co.,  405,  455. 
Luck  v.  State,  382. 
Lucke  v.  Clothing  C.  &  T.  Assem- 
bly, 206. 

Lucker   v.   Com.,   402. 
Lucky  Queen  Min.  Co.  v.  Abraham, 

111. 

Ludwick  v.  Fair,  487. 
Ludwig  v.  Blackshere,  467. 
Lufkin  v.  Curtis,  540. 
Luke  v.  Calhoun  County,  429. 
Lum  v.  State,  152. 
Lumley  v.   Wabash   R.    Co.,  461. 
Lumm  v.  State,  197. 
Lumpkin  v.  Murrell,  406. 
Lundy  v.  State,  369. 
Lunsford  v.  Dietrich,  32,  33. 
Lyddon  v.  Ellison,  299. 
Lydell  v.  Lapeer  County,  381. 
Lyle  v.  Ellwood,  237. 
Lyman  v.  Boston  &  M.  R.  Co.,  280, 

282. 
Lynch  v.  Coffin,  160. 

v.  Com.,  23,  327. 

\.  Peabody,  161. 

v.  People,  197. 

v.  Rosenthal,   554. 

v.  Smith,  142. 

Lyndonville  Nat.  Bank  v.  Fletcher, 
557. 


Lyndsay  v.  Connecticut  &  P.  R.  R. 

Co.,  273. 

Lyne  v.  Sanford,  102. 
Lyon  v.  Adde,  310. 

v.  Green  Bay  &  M.  R.  Co.,  340. 

v.  Honie,  182. 

v.  McDonald,  107. 

v.  Odell,  306. 

v.  United  States,  423,  433,  445 
Lyons  v.  Campbell,  186. 

v.  Leahy,  176. 

v.  Ward,  464. 

M. 

Maas  v.  Ter.,  23,  326,  329. 
Maberley  v.  Robins,  403. 
McAfee  v.  Huidekoper,  299. 
McAleer  v.  McMurray,  64. 
McAlexander  v.  Wright,  83. 
McAlister  v.  Burgess,  436. 
McAllister  v.   Engle,   322. 

v.  State,  22,   328. 
McAlmond  v.  Bevington,  339. 
McArthur  v.  Carrie's  Adm'r,  54,  59, 
62,  355,   356,  357. 

v.  State,  21,  74,  157. 
McBean  v.  McBean,  236,  238,  240. 
McBee  v.  Fulton,  25. 
McEride  v.  Farmers'  Bank,  227. 

v.  Greenwood,  520. 

y.  Northern   Pac.   R.   Co.,  278. 
McCabe,  Ex  parte,  418. 
McCaffrey  v.  Benson,  257. 
McCagg  v.  Heacock,  51,  60. 
McCall  v.  Pryor,  345. 
McCalley  v.  Otey,  36. 
McCallum    v.    Germantown    Water 

Co.,  358. 

McCartee  v.  Camel,  254,  259. 
McCarthy  v.  Lavasche,  545. 

v.  Louisville  &  N.  R,  Co.,  288 

v.  McCarthy,  306. 


634 


TABLE  OF  OASES. 


[REFERENCES  ARE  TO  PAGES.] 


v.  White,  172. 

McCartney  v.  McCartney,  125. 
McCartney's   Adm'r   v.   Bone,   313. 
McCarty  v.  Beach,  116. 

v.  Leggett,   522. 

v.  McCarty,  151. 

McCaskill  v.  Conn.  Sav.  Bank,  557. 
McChesney  v.  Chicago,  413. 
McClary  v.  Mich.  Cent.  R.  Co.,  303. 
McClaugherty  v.  Cooper,  26. 
McCleary  v.  Menke,  504. 
McClintock  v.  State  Bank,  131. 
McCluer  v.  M.  &  L.  R.,  114. 
McClung  v.  Ross,  89. 
McClure  v.  Lewis,  179,  180. 

v.  Pursell,  30. 
McComb  v.  Wright,  300. 
McConeghy  v.  Kirk,  195. 
McConihe  v.  Fales.  525. 
McConnell  v.  Poor,  503. 
McCormack  v.  Molburg,  211. 

v.  State,   138. 
McCormick'  v.  Evans,  306. 

v.  Fitzmorris,  135. 

v.  Garnett,  414. 

v.  Herndon,   391. 

v.  Holmes,  13. 
McCormick  Harvesting  Mach.   Co. 

v.  Jacobson,  420,  424,  449. 
McCornick  v.  Sadler,  304. 
McCorry  v.  King's  Heirs,  360,  532. 
McCoy  v.  Cal.  Pac.  R.  Co.,  273. 
McCrackin  v.  Wright,  519. 
McCravey  v.  Remson,  511. 
McCrea  v.  Marshall,  33. 

v.  Putmont,    527. 
McCreery    v.    Berney    Nat.    Bank, 

465. 

McCnllen  v.  C.  &  N.  W.  R.  Co.,  274. 
McCulloch  v.  McCulloch,  246. 
McCullough   v.   Dashiell,   529,   535. 

v.  Phoenix  Ins.  Co.,  150. 


v.  Wall,  348,  360,  364. 
McCusker  v.  McEvey,  522,  529. 
McCutchen   v.    McGahay,   192. 
McDaniel  v.  Baca,  176. 

v.  Crosby,  333. 

v.  State,   200. 

v.  Wright,    412. 

McDaniels    v.    Flower    Brook    Mfg. 
Co.,  113. 

v.  Robinson,   285. 
McDeed  v.   McDeed,  151. 
McDermott  v.  Jackson,  84. 
McDonald  v.  Aufdengarten,   130. 

v.  Frost,  107. 

v.  Humphries,  467. 

v.  Kirly,  427. 

v.  Lusk,    525. 

v.  Mallory,  228. 

v.  Prescott,  103. 
McDongald  v.  Dougherty,  536. 
McDonough  v.  O'Niel,  162. 
McDowell    v.    Aetna    Ins.    Co.,    84. 

v.  Goldsmith,  127. 
McEvoy  v.  Swayze,  33,  3'5. 
McEwen  v.  Bamberger,  125. 
Macey  v.  Titcombe,  399. 
McFadden  v.  Mo.  Pac.  R.  Co.,  214. 

v.  Ross,   125. 

McFadin  v.  Catron,  184,  335. 
McFarlane  v.  Louden,  118. 
McGahan  v.  Indianapolis  Nat.  Gas 

Co.,  423. 

McGahen  v.  Carr,  89. 
McGar  v.  Adams,  165. 
McGarrahan  v.   New  York,  N.   H. 

&  H.  R.  Co.,  451. 
McGary  v.  Loomis,  141. 
McGee  v.  Kane,  562. 
McGehee  v.  Wilkins,  101. 
McGeorge  v.  Hoffman,  359,  363. 
McGhee  Irr.  Ditch  Co.  v.  Hudson, 
34. 


TABLE  OF  CASES. 


635 


[REFERENCES  ARE  TO  PAGES.] 


McGill  v.  Shea,  520,  542. 
McGinnis  v.  Kempsey,  47,  68,  332. 
McGowan  v.  St.  Louis  &  I.  M.  R. 

Co.,  439. 

McGuire  v.  Bidwell,  317. 
McHenry  v.  Yokum,  432. 
McHugh  v.  McHugh,  155,  160. 
Mclnnls  v.  Lyman,  522. 

v.  Pickett,  520. 
Mclntire  v.  Preston,  114. 
Mclntosh  v.  Lee,  424. 

v.  Parker,  536. 
Mclntyre  v.  Ajax  Min.  Co.,  158. 

v.  Buell,  207. 
Mclsaac  v.  Northampton  E.  L.  Co., 

276. 

Mack  v.  South  Bound  R.  Co.,  273. 
McKaln  v.  Love,  451. 
McKanna  v.  Merry,  145. 
McKay  v.  Beard,  110. 

v.  Musgrove,  420. 
McKeen  v.  Gammon,  469. 
Mackelley's  Case,  453. 
McKenna  v.  McKenna,  237. 
McKenzie  v.  British  Linen  Co.,  558, 
560,  5G4. 

v.  Elliott,  361,  362,  366. 

v.  Lexington,  517. 

v.  Or.  Imp.  Co.,  30,  41,  126. 

v.  State,  328. 

v.  Stevens,    150. 
McKeown  v.  Johnson,  190. 
McKesson  v.   Stanberry,  129. 
Mackey  v.  Peterson,  212. 
McKim  v.  Foley,  161,  164. 
McKinder  v.  Littlejohn,  305. 
McKinney  v.  Lanning,  535. 

v.  State,  139. 

Mackinnon   v.   Barnes,   394,   395. 
McKinnon  v.  Bliss,  427. 
McKinny  v.  State.  140. 
McKinzie  v.  Mathews,  466. 


Macklot  v.  Dubreuil,  516. 
McLain  v.  Buliner,  562. 
McLane  v.  Perkins,  280. 
McLaughlin   v.   Citizens'  Bldg.,  L. 

&  Sav.  Ass'n,  545. 
McLawrin  v.  Salmons,  346. 
McLean  v.  Clark,  566,  567. 

v.  Meek,  502. 
McLeery  v.  McLeery,  532. 
McLellan  v.  .Crofton,  313,  314,  316. 
McLoon   v.   Commercial   Mut.   Ins. 

Co.,  36. 

McLure  v.  Lancaster,  340. 
McMahan  v.  Geiger,  498. 

v.  Smith,  182. 
McMahon  v.  Eagle  L.  Ass'n,  104. 

v.  Harrison,  146. 

v.  McElroy,  254,  255. 
McManness  v.   Paxson,  515. 
McManus  v.  Wallis,  32. 
McMaster  v.  Morse,  383. 

v.  Scriven,    184. 
McMath  v.  Teel,  551. 
McMechen  v.  McMechen,  184,  332. 
McMichael  v.  McDermott,  176. 
McMillan  v.  Mich.  S.  &  N.  I.  R., 
116,  213,  290. 

v.  School  Committee,  68. 
McMinn   v.   Whelan,   101. 
McMullen  v.  Winfield  B.  &  L.  Ass'n 

148. 

McMullin  v.  Glass,  528. 
McMurray  v.  Taylor,  317,  318. 
McNaghten's  Case,  327. 
McNair  v.  Hunt,  105,  347. 
McNamara  v.  People,  203. 
McNeely  v.  McNeely,  247. 
McNeil  v.   Hill,  549. 

v.  Jordan,  538. 

McNichol  v.  Pac.  Exp.  Co.,  431. 
McNulta  v.  Corn  Belt  Bank,  546. 
McNutt    v.    Trogden,    499. 


€36 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  PACES.] 


McParland  v.  Larkin,  179. 
McPeek  v.  W.  TJ.  Tel.  Co.,  287. 
McPhail  v.  People,  465. 
McPherson  v.  Cunliff,  517. 

v.  Walters,   555. 
McQueen  v.  Fletcher,  50,  310. 

v.  People's  Nat.  Bank,  34. 
McQnilken    v.    Cent.    Pac.    R.    Co., 

278,  281. 

McReynolds  v.  McCord,  169. 
McWhirt's  Case,  200,  201. 
McWilliams  v.  Kalbach,  504. 

v.  Nisly,  517,  531,  539. 
Maddox  v.    Maddox,   162,  184,   185, 

332. 

Maden  v.  Taylor,  299. 
Magee  v.  People,  369. 

v.  Scott,  148,  153,  339,  343. 
Magill  v.  Merrie,  131. 
Magor  v.  Chadwick,  354. 
Magruder  v.  Esmay,  520. 
Maguire  v.  Eichmeier,  136. 

v.  Selden  561. 
Maher  v.  People,  199,  201. 
Mahoney  v.  Aurrecochea,  425. 

v.  Butte    Hardware    Co.,   465. 
Maigley  v.  Hauer,  528. 
Main,  In  re,  256. 
Main  v.  Brown,  306. 
Major  v.  State,  385,  386,  393,  394. 
Majors  v.  Cowell,  490. 
Malauey  v.  Taft,  284. 
Maldaner   v.    Smith,    135. 
Mallett  v.   Simpson,   114. 
Malloney  v.  Horan,  511. 
Mallory  v.  Hanaur  Oil  Works,  547. 

v.  Riggs,  195. 

v.  Travelers'   Ins.  Co.,  266. 
Mallow  v.  Walker,  177. 
Malone  v.   Kelley,   179. 
Malpas  v.  Clements,  119. 
Malpica  v.  McKown,  412,  414,  417. 


Manchester  Bank  v.  Allen,  110. 
Manchester  &  L.  R.  Co.  v.  Concord 

R.  Co.,  547,  548. 
Mandal  v.  Mandal's  Heirs,  172. 
Mangam  v.  B.  R.  Co.,  141. 
Mangles  v.  Dixon,  559,  564. 
Manigault  v.  Holmes,  499,  502. 
Mankato  v.  Willard,  517,  553. 
Manley  v.  Pattison,  253,  255. 
Manley's  Ex'r  v.  Staples,  337,  338, 

507. 
Mann  v.  Birchard,  288,  289. 

v.  Young,   520,  522. 
Mann-Boudoir    Car    Co.    v.    Dupre, 

438. 

Manning  v.  J.  Hancock  Mut.  L.  Ins. 
Co.,  764. 

v.  Meredith,  307. 

v.  Pippen,  465. 

v.  Wells,  286. 

v.  West  End  St.  R.  Co.,  450. 
Manny  v.  Harris,  513. 
Mansfield  v.  Dameron,  319. 
Mfrs.   Ace.  Indem.  Co.  v.  Dorgan, 

37,  266. 

Mfrs.  Bank  v.  Winship,  131. 
Maples  v.  Mackey,  106. 
Marbury  v.  Ehlen,  215. 
March  v.  Com.,  390,  392. 
Marco  v.  Fond  du  Lac  County,  549. 
Marine  Inv.  Co.  v.  Haviside,  117. 
Marines  v.  Goblet,  558. 
Marion  v.  State,  24. 
Marion  County  Com'rs  v.  Clark,  8, 
128. 

v.  Welch,  509. 
Market  &  F.  Nat.  Bank  v.  Sargent, 

13,  62,  67,  130. 
Markham  v.  O'Connor,  566. 
Markley  v.  People,  505. 
Marks  v.  Matthews,  99. 

v.  N.  O.  Cold  Storage  Co.,  285, 


TABLE  OF  CASES. 


637 


[REFERENCES  ARE  TO  PAOES. 


v.  Sullivan,   447. 
Marksbury  v.  Taylor,  181. 
Marquette,  H.  &  O.  R.  Co.  v.  Kirk- 
wood,  294. 

Marr's  Heirs  v.   Gilliam,  348,  349. 
Marschall  v.  Aiken,  559. 
Marsh  v.  Cramer,  173,  176. 

v.  Loader,  138. 

v.  Mitchell,  469. 

v.  Thompson,  550. 

v.  Whitmore,  216. 
Marshall  v.  Cliff,  469,  470. 

v.  Lamb,  80. 

v.  Oakes,  189,  190. 

v.  State,  200. 

v.  Thames  F.  Ins.  Co.,  27. 
Marshall    County    Sup'rs   v.   Cook, 

216. 

Marsteller  v.  Marsteller,  487. 
Marston  v.  Bigelow,  84,  85. 

v.  Kennebec    M.    L.    Ins.    Co.: 
558. 

v.  Wilcox,  321. 
Martin  v.  Aultman,  386. 

v.  Cowles,  496. 

v.  Dwelly,  540. 

v.  Ellerbe's  Adm'r,  502. 

v.  Evans,  506. 

v.  Fishing  Ins.  Co.,  153. 

v.  Gilbert,  526. 

v.  McCormick,  219. 

v.  Martin,  224,  382. 

v.  Rushton,  89. 

v.  State,  138,  139,  155. 

v.  Tally,  503. 

v.  Wharton,  220. 

v.  Williams,  104. 
Martin's  Will,  In  re,  184. 
Martindale  v.  Falkner,  217. 
Martinez  v.  State,  200. 
Martyn  v.  Curtis,  147,  148. 
Marvel  v.  Manouvrier,  83. 


Marx  v.  McGlynn,  182,  185. 
Mason  v.  Alston,  511. 

v.  Kellogg,  496,  4ft7. 

v.  Mason,  263. 

v.  Noonan,  127. 

v.  Richmond  &  D.  R.  Co.,  438. 

v.  Ring,  183. 

v.  Spurlock,  304. 

v.  Thompson,   286. 
Masonic  Life  Ass'n  of  Western  N. 

Y.   v.   Pollard's  Guardian,   265. 
Massey  v.   Citizens'   Bldg.   &   Sav. 

Ass'n,    545. 

Massie  v.  Sebastian,  531,  540. 
Masterson  v.  Le  Claire,  395. 

v.  Matthews,  390. 
Mateer  v.  Brown,  8,  286. 
Mather  v.  Trinity  Church,  350. 
Mathews  v.  Buckingham,  91. 

v.  Great  Northern  R.  Co.,  405. 
Matlock  v.  State,  371. 
Mattes  v.  Frankel,  555. 
Matthews,  In  re,  256. 
Matthews  v.  Hershey  Lumber  Co., 
155. 

v.  Lanier,  232. 

v.  Ward,  348. 

Matthews'  Estate,  In  re,  246. 
Mattingly    v.    Nye,    174. 
Mattox  v.  Helm,  506. 
Mauldin  v.  City  Council,  66,  491. 
Maverick  v.  Austin,  347. 
Maxsom's  Lessee  v.   Sawyer,  99. 
Maxwell  v.  Griffith,  392,  458. 

v.  State,  21,  327. 
May  v.  Wilkinson,  309. 
Mayers  v.  Kaiser,  173. 
Mayo  v.  B.  &  M.  R.,  279. 

v.  Jones,  333. 
Mays  v.  Jennings,  398. 
Mead  v.  Husted,  27. 
Meadows  v.  Cozart,   119. 


638 


TABLE  OF  CASES. 


[BEFEBENCES  ABE  TO  PAGES.] 


v.  Pac.  M.  L.  Ins.  Co.,  267. 
Meagley  v.  Hoyt,  36,  162,  169. 
Means  v.  Hi.cks'  Adm'r,  503. 
Mears  v.  Graham,  218. 

v.  N.  Y.,  N.    H.   &   H.  R.   Co., 

291. 

Mebane  v.  Patrick,  360,  364. 
Medsker  v.  Richardson,  303. 
Meek  v.  Perry,  179,  185. 
Meents  v.  Reiken,  36. 
Megargel's  Adm'r  v.  Megarel,  549. 
Megginson  v.  Megginson,  il5. 
Mehaffy  v.  Lytle,  494,  495. 
Mehlberg  v.  Tisher,  317. 
Meier  v.  Pa.  R.  Co.,  296. 
Meikel  v.  State  Sav.  Inst,  131. 
Meldrum  v.  Clark,  118. 
Melledge  v.  Boston  Iron  Co.,  317: 

320. 

Mellish  v.  Robertson,  218. 
Melvin  v.  Locks  &  Canals  on  Mer- 
rimack  River,  347. 

v.  Whiting,  354,  359,  360. 
Memphis  &  C.  R.  Co.  v.  Holloway, 
294. 

v.  Reeves,  292. 
Memphis  &  O.  R.  P.  Co.  v.  McCool, 

295. 
Memphis  &  St.  F.  Plank  Road  Co. 

v.  Rives,  110. 
Mendenhall,  In  re,  546. 
Menominee   River   S.   &  D.  Co.  v. 

M.  &  N.  R.  Co.,  276. 
Merchants'    Bank    v.    Lucas,    562, 
564. 

v.  Marine  Bank,  473. 
Merchants'    Despatch    Transp.    Co. 
v.  Bloch,  213,  289. 

v.  Furthmann,  214. 
Merchants'  Exch.  Bank  v.  McGraw, 
397. 


Merchants'  Nat.  Bank  v.  Carhart, 
283,  284. 

v.  Guilmartin,  283. 
v.  Hall,  375,  440. 
Merchants'    &    P.    Nat.    Bank    v. 

Masonic  Hall,  128. 
Meredith  v.  Santa  Clara  Min.  Ass'n 

513. 

Meritt  v.  Boyden,  132. 
Merriam  v.  Boston,  C.  &  F.  R.  Co., 

541. 

Merrill  v.  Dawson,  118. 
v.  Emery,   123. 
v.  Melchior,  234. 
Merrills  v.   Swift,  123,  125. 
Merritt  v.  Baldwin,  107. 
v.  Boyden,  135. 
v.  Cotton    States   L.    Ins.    Co., 

330. 

v.  Wilcox,  469. 
Merryman  v.  Euler,  182. 
Merwin  v.  Ward,  159,  165,  170. 
Meshke  v.  Van  Doren,  399. 
Messinger's  Appeal,   362. 
Metcalf  v.  Hess,  285. 
Metcalfe  v.  Brandon,   123,  125. 
Methodist  Churches  v.  Barker,  503. 
Methodist  Episcopal  Soc.  v.  Lake, 

109. 
M.    E.    Union    Church    v.    Pickett. 

111. 
Metropolitan  L.  Ins.  Co.  v.  McCoy, 

558. 
Metropolitan  Nat.   Bank  v.  Jones, 

319. 
Metropolitan  R.  Co.  v.  Jackson,  7. 

v.  Snashall,  439. 
Metropolitan  St.  R.  Co.  v.  Powell, 

12,  16,  62. 

Metters  v.  Brown,  529. 
Metzger  v.   Schultz,   146. 


TABLE  OF  CASES. 


639 


[REFERENCES  ARE  TO  PAGES.] 


Meuer  v.  C.,  M.   &  St.  P.  R.  Co., 

228,   230,   232,  413,   414. 
Mexican  Cent.  R.  Co.  v.  Laurlcella, 

18,  63,  295,  297. 
Meyer  v.  Barth,  503. 

v.  Krauter,  433,  440. 

v.  Vicksburg,  Shreveport  &  P. 

R.  Co.,  276. 
Meyers  v.  Hinds,  269. 
Mich.  Cent.     R.     Co.     v.     Mineral 

Springs  Mfg.  Co.,  213. 
Michigan  L.  &  I.  Co.  v.  Deer  Lake 

Co.,  38. 
Michigan  S.  &  N.  I.  R.  Co.  v.  Me- 

Donough,  438. 
Mickey  v.  Stratton,  112. 
Mickum  v.  Burckhardt,  497. 
Middeke  v.  Balder,  263,  264. 
Middleton  v.  Earned,  126. 

v.  Brewer,  471. 

v.  Hoge,  222. 

v.  Sandford,  194. 
Midland  R.   v.   Canman,  297. 
Mighell  v.  Sultan  of  Johore,  409. 
Milbery  v.  Storer,  137. 
Milburn  v.  Phillips,  148. 
Mileham's  Trust,  In  re,  263. 
Miles  v.  Collins,  225. 

v.  Mcllwraith,    565. 

v.  U.  S..  20,  243. 

v.  Woodward,   464/467. 
Milford  v.  Holbrook,  495. 
Millard    v.    McMullln,    535. 

v.  Truax,  407. 
Millay  v.  Butts,  339. 
Milledge  v.  Gardner,  309. 
Miller  v.  Anderson,  246,  247. 

v.  Asheville,  462. 

v.  Beates,   253,  300. 

v.  Ecans,  305. 

v.  English,  82. 

v.  Fraley,  344. 


v.  Goodwin,    527. 

v.  Hlnes,  131. 

v.  Indianapolis,   377,   383,   426. 

v.  James,  462. 

v.  Jones,  161. 

v.  Kirby,  344. 

v.  Lamar,   34. 

v.  McElwee,  252. 

v.  Matthews,  394,  399. 

v.  Miller,  90,  540. 

v.  Ocean  S.  S.  Co.,  296. 

v.  People,  156,  157,  203. 

v.  Proctor,  216.' 

v.  Rhoades,  495. 

v.  Rutledge,  330. 

v.  Shields,  36. 

v.  Simonds,    179,    183. 

v.  Smith,  144. 

v.  Smith's  Ex'rs,  306. 

v.  State,   26,  94,  187. 

v.  Sweitzer,  190. 

v.  Williams,  471. 

v.  Wilson,  228,  229,  233. 
Miller's  Appeal,  301,  302. 
Miller   Piano  Co.   v.   Parker,   559. 
Milligan  v.  Sligh  Furniture  Co.,  37 
Milliken  v.  Marlin,  136. 
Million  v.  Taylor,  179. 
Millis  v.  Barber,  30,   126. 
Millman  v.  Tucker,  166. 
Millner's  Estate,  In  re,  299,  300. 
Mills  v.  Colchester,  L.  R.,  355. 

v.  Gilbreth,   283,   284. 

v.  Graves,  555,  561,  565. 

v.  Hall,  354. 
Mills'  Estate,  247. 
Mills  County  Nat.  Bank  v.  Perry, 

464. 
Milwaukee  &  C.  R.  Co.  v.  Hunter, 

282. 

Mimandre  v.  Allard,  32. 
Mims  v.   Swartz,  396. 


640 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  PAGES.] 


Mink  v.   Shaffer,  104. 
Minock    v.    Shortridge,    143. 
Miuot  v.  Russ,  319. 
Minter  v.  Crommelin,  93,  98. 
Minty  v.  Union  Pac.  R.  Co.,  276. 
Miskey's  Appeal,  179. 
Mission  v.  Cronin,  358. 
Mississinewa   Min.   Co.    v.   Patton 

423. 
Missouri,  K.  &  T.  R.  Co.  v.  Carter, 

214. 
Missouri  Pac.  R.  Co.  v.  Beeson,  214. 

v.  Brazzil,   55,  326. 

v.  China  Mfg.  Co.,  290,  292. 

v.  Foreman,  278,  282. 

v.  Lewis,    439. 

v.  Porter,  64. 

v.  Richmond,   208. 

v.  Twiss,  494. 
Mitchell  v.   Bannon,  473. 

v.  Bradstreet  Co.,  207. 

v.  Carolina   Cent.   R.   Co.,  290, 
291. 

v.  Chicago  &  G.  T.  R.  Co.,  299. 

v.  Clinton,    278. 

v.  Com.,   435. 

v.  Hockett,   318,  320. 

v.  Ingram,   526. 

v.  Nashville,  C.  V.  &  St.  L.  R. 
Co.,  273. 

v.  Petty,   517. 

v.  Raleigh   Elec.   Co.,   270. 

v.  Rome,  364. 

v.  Southern  Pac.   R.   Co.,   297. 

v.  State,  200,  202,  205. 

v.  Treanor,  192,   193. 

v.  United  States,  152. 

v.  U.  S.  Exp.  Co.,  289,  292. 

v.  Walker,   354,   355,   356,   359, 
364. 

v.  Western  &  Atlantic  R.,  299. 
Mitchell's  Lessee  v.  Ryan,  121,  124. 


Mobile    Sav.    Bank   v.    McDonnell, 

175. 
Mobile  &  M.  R.  Co.  v.  Wilkinson, 

527. 
Mobile  &  O.  R.  Co.  v.  Hudson,  273. 

v.  Tupelo  F.  Mfg.  Co.,  294. 

v.  Whitney,  412. 
Mobley  v.  Ryan,  126. 
Modawell  v.  Holmes,  406. 
Moddie  v.  Breiland,  132,  137. 
Mode  v.  Beasley,  195. 
Moehring  v.  Mitchell,  264,  265. 
Moffet  v.  Moffet,  38. 
Moffett  v.  Parker,  553. 
Mohr  v.  Miesen,  225,  234. 
Molaske  v.  Ohio  Coal  Co.,  141. 
Moncrief  v.  State,  372. 
Monroe   v.   Barclay,   185. 

v.  Douglass,  227,  412. 
Monroe    Bank    v.    Anderson    Bros. 

Min.  &  R.  Co.,  129. 
Montag  v.  People,  326,  328. 
Montague  v.  Allan's  Ex'r,  215. 

v.  Benedict,   192. 
Montello,  The,  428,  445. 
Montesquieu  v.  Heil,  504. 
Montgomery  v.  Bevans,  260. 

v.  Crossthwait,  131. 

v.  Deeley,  418. 

v.  Keppel,  563. 

v.  Muskegon    B.    Co.,   275. 

v.  Pac.  Coast  Land  Bureau,  83. 

v.  Richardson,  467. 

v.  Ship  Abby   Pratt,  289. 
Montgomery  &  E.  R.  Co.  v.  Culver, 

291,  294,  295. 
Montgomery  &  W.  Plank-Road  Co. 

v.  Webb,  148. 
Monticello    Nat.    Bank    v.    Bryant, 

458. 

Monument    Nat.     Bank    v.    Globe 
Works,   548. 


TABLE  OF  CASES. 


641 


[REFERENCES  ARE  TO  PACES.] 


Moody  v.  Peyton,  502. 

v.  Whitney,  153. 
Moog  v.  Randolph,  389. 
Moon  v.  Hawks,  339. 
Mooney  v.  Holcomb,  159,  165. 

v.  Kennett,    402. 
Moore  v.  Albany,  491. 

v.  Alexander,   504. 

v.  Baker,  9. 

v.  Brownfield,  563. 

v.  Chicago,  M.  &  St.  P.  R.  Co., 
346. 

v.  Conn.  M.  L.  Ins.  Co.,  330. 

v.  Copley,  192,  193. 

v.  Flynn,  124. 

v.  Giles,   124,  125. 

v.  Heineke,  183,  235,  238,  242. 
244. 

v.  Leseur,  39. 

v.  McKenney,  9. 

v.  Moore,  236,  240,  560,  563. 

v.  Neil,  106. 

v.  New  York,  N.  H.   &  H.  R. 
Co.,   294. 

v.  Parker,  261,  269. 

v.  Rake,  517,  531. 

v.  Robbins,   486. 

v.  Smith,  308. 

v.  Spier,  185. 

v.  Stone,  24. 

v.  Swanton  Tan.  Co.,"  548. 

v.  Williams,   489. 

v.  Wright,  474. 
Moore's  Appeals,  502. 
Moorman  v.  Quick,  343. 
Moose  v.  Carson,  526. 
Moran  v.  Abbott,  87. 
Morehead  v.  State,  47. 
Moreland  v.  Atchison,  221. 
Morey   v.   Farmers'   L.    &    T.   Co., 

307. 
Morford  v.  Peck,  176. 


Morgan  v.  Burrow,  424. 

v.  Farrel,  566. 

v.  Kendall,    166. 

v.  Morse,    417. 

v.  State,   24,   381. 

v.  U.  S.,  216. 

v.  Yarborough,  130. 
Morganton  Mfg.  Co.  v.  O.  R.  &  C. 

Co.,   160. 

Moriarity  v.   London,   C.   &   D.   R. 
Co.,  160. 

v.  Moriarity,  332. 
Morly's  Case,  199. 
Morrill  v.  Douglass,  92. 

v.  Graham,  216. 
Morris  v.  Davidson,  395. 

v.  Davis,  245,  249,  250,  251. 

v.  Edwards,  427. 

v.  Garrison,   501. 

v.  Hastings,  344. 

v.  Hubbard,  231. 

v.  McClary,   194,   195. 

v.  Miller,  244. 

v.  Morris,  243. 

v.  Wheat,  515,  523,  530,  534. 
Morrison  v.  Caldwell,  517,  523,  560. 

v.  Clark,  499. 

v.  Collins,  307,  309. 

v.  Funk,  306,  310. 

v.  Holt,  192,  193. 

v.  Insurance  Co.  of  N.  A.,  212. 

v.  Woolson,  107. 
Morriss  v.  Davis.  249. 
Morrissey   v.   Wiggins   Ferry   Co., 

194. 

Morrow  v.  Robinson,  306. 
Morrow    Shoe    Mfg.   Co.   v.   N.    E. 

Shoe  Co.,  13,  16. 
Morse  v.  Bellows,  524. 

v.  Buffalo  F.  Ins.  Co.,  423. 

v.  Hewett,   416. 

v.  Wheeler,  222. 


642 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  PAGES.] 


v.  Williams,  363. 
Mortimer  v.  Marder,  231. 
Morton  v.  Heidorn,  68,  184. 

v.  Morton,  85. 

v.  Rainey,  304. 

v.  Woods,  542,  551. 
Morville  v.  American  T.  Soc.,  548. 
Moseley's   Adm'r   v.   Mastin,   431. 
Moses  v.  Fogartie,  193. 

v.  Gatewood,    20. 

v.  Julian,  447. 

v.  McClain,  537. 

v.  Trice,  317. 

v.  U.   S.,  375,  437. 
Mosley  v.  Vermont  Mut.  Fire  Ins. 

Co.,   423. 

Moss  v.  McCullough,  503. 
Mossman  v.  Forrest,  384,  427. 
Mott  v.  Consumers'   Ice   Co.,  473. 
Mount  v.  Harris,  339,  343. 
Mouton  v.  Louisville  &  N.  R.  Co... 

213. 

Mowers  v.  Fethers,  286. 
Moyle  v.  Landers,  565. 
Mueller  v.  Fruen,  354,  359. 

v.  Henning,  504. 

v.  State,  434. 
Mugler  v.  Kansas,  13,  43. 
Muhlenberg  v.  Druckenmiller,  527, 

534. 

Mulcairns  v.  Janesville,  269,  271. 
Mullen  v.  Pryor,  149. 

v.  Sackett,  420. 

v.  St.  John,  271. 

Mulligan  v.  111.   Cent.  R.  Co.,  213. 
Mullins    v.   Cottrell,  336. 

v.  Rieger,  106. 
Mulvey  v.  State,  189. 
Munday  v.   Vail,   487. 
Munger  v.  Baldridge,  465. 
Munn  v.  Burch,  403,  440. 
Munroe  v.  Cooper,  129. 


v.  Gates,   348. 
Munshower  v.  State,  377. 
Munson  v.  Atwood,  26. 
Murchison   v.    White,   102. 
Murdock  v.  State,  147,  151. 
Murphy  v.  Barnard,  566. 

v.  Chase,  98. 

v.  Coates,    310. 

v.  Collins,  228,  229. 

v.  Deane,  280. 

v.  Harris,  29. 

v.  Hendricks,   384. 

v.  Orr,  149. 

v.  People,  200,  201. 

v.  Phil.  Trust'  Co.,  307. 

v.  State,  203. 

v.  Waterhouse,  24. 
Murray,  In  re,  263. 
Murray  v.   Beckwi'th,  126. 

v.  D^.   &   R.   G.   R.   Co.,   8,  268, 
276. 

v.  Lepper,  157,  158. 

v.  Mo.  Pac.  R.  Co.,  272,  278. 

v.  N.  Y.  Life  Ins.  Co.,  20,  35, 
38. 

v.  S.  C.  R.  Co.,  273. 
Murry  v.  Hennessey,  332,  334. 
Murtey  v.  Allen,  413. 
Muse  v.  Richards,  384. 
Mushat  v.  Moore,  472. 
Musselman  v.  McEIhenny,  553. 
Musser   v.    Stauffer,   225. 
Mussey  v.  White,  96. 
Mut.  Ben.  Co.'s  Petition,  255,  256, 

257,  260. 

Mut.   Ben.   L.   Ins.  Co.   v.  Daviess' 
Ex'r,   331. 

v.  Robison,    428. 

v.  Tisdale,    490. 

Mut.  F.  Ins.  Co.  v.  Phoenix  Furni- 
ture Co.,  497. 
Mutual  Life  Ins.  Co.  v.  Corey,  515. 


TABLE  OF  CASES. 


[REFEBENCES  ARE  TO  PAGES.] 


v.  Dingley,  397. 

v.  Hill,  397. 

v.  Phinney,    220. 

v.  Wiswell,   266,  337. 
Mut.  Nat.  Bank  v.  Rotge,  319. 
Myatt  v.  Myatt,  239,  242. 

v.  Walker,  330. 

Myers  v.  Chicago,  St.  P.,  M.  &  O. 
R.  Co.,  228,  229,  413. 

v.  Girard  Ins.  Co.,  147. 

v.  McGraw,  117. 

v.  State,  391,  448. 
Mynning  v.  Detroit,  L.  &  N.  R.  Co., 
8,  278,  280. 

N. 

Nachtrieb  v.  Harmony  Settlement, 

182. 

Nagle  v.  Alleghany  V.  R.  Co.,  142. 
Nagle's  Estate,  131,  132. 
Napier  v.  Bulwinkle,  365. 
Nash    v.    Minnesota   Title    Ins.    & 
Trust  Co.,  207. 

v.  Spofford,  515,  540. 
Nashua  &  L.  R.  Corp.  v.  Boston  & 

L.  R.  Corp.,  511. 
Nason  v.  Blaisdell,  491. 

v.  West,  276. 

Nassau  Bank  v.  Jones,  546. 
National  Bank  v.  BonneH,  125. 
v.  Bryant,  390. 

v.  Chicago,  B.  &  N.  R.  Co.,  318. 
v.  Young,  548. 

National  Bank  of  Com.  v.  Ameri- 
can Exch.  Bank,  470. 
National  Bank  of  D.  O.  Mills  &  Co. 

v.  Herold,  93. 
National   Ben.    Ass'n   v.   Grauman, 

37. 

National  G.  A.  Bank  v.  Lang,  231. 
National  L.  Ins.  Co.  v.  Mead,  527. 


National    Masonic    Ace.    Ass'n    v. 
Burr,  84,  86. 

v.  Seed,  407. 
National  Mut.  Bldg.  &  L.  Ass'n  v. 

Ashworth,  462,  468. 
National  Mut.  F.  Ins.  Co.  v.  Yeo- 

mnns.  110. 

National  S.  S.  Co.  v.  Tugman,  461. 
National    Ulster    County    Bank    v. 

Madden,  136. 
National   Union   Bank  v.  National 

Mechanics'    Bank,    565". 
Nave  v.   Adams,   498. 
Naylor  v.  Ninock,  541. 
Neaderhouser  v.   State,  428. 
Neal  v.  Coburn,  219. 

v.  Wilcox,  286. 

Nebraska  Nat.  Bank  v.  Johnson,  27. 
Nedby  v.  Nedby,  180. 
Needham  v.  Clary,  515.' 
Neese  v.  Farmers'  Ins.  Co.,  231,  412. 
Neeson   v.   Troy,   501. 
Neeves  v.  Burrage,  403. 
Neff  v.  Homer,  134. 
Neil  v.  Case,  132,  133,  137. 
Neill  v.  Travelers'  Ins.  Co.,  267. 
Nellis  v.  Lathrop,  552. 
Nelms  v.  Edinburgh  A.  L.  Mortg. 
Co.,  232. 

v.  Steiner,  164. 
Nelson  v.  Cherrill,   344. 

v.  Gushing,  430. 

v.  Fleming,  347. 

v.  People,  81. 

v.  Pierce,  27. 

v.  Woodruff,  288. 
Nelson's  Will,  In  re,  185. 
Nepean  v.  Knight,  259. 
Nesbitt  v.  Turner,  133. 
Netso  v  State,  435. 
Neubrandt  v.  State,  370. 
Neville  v.  Kenney,  452,  453. 


644 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  PAGES.] 


Nevin  v.  Ladue,  435. 

New  v.  Applegate,  81. 

Newark  Elec.  L.  &  P.  Co.  v.  Ruddy, 

270. 
Newberger  Cotton  Co.  v.  Illinois  C. 

R.  Co.,  291. 
Newberry  Bank  v.  Greenville  &  C. 

R.  Co.,  399,  400. 
New  Boston  v.  Dunbarton,  96. 
Newcomb  v.  Dewey,  83. 
Newcomb's  Ex'rs  v.  Newcomb,  101. 
Newell  v.  Meyendorff,  462. 
v.  Newton,  392,  417. 
v.  Nichols,  264. 
New  England  Mut.  L.  Ins.  Co.  v. 

Hasbrook's  Adm'x,  114. 
New    Hanover    Bank   v.    Bridgers, 

127. 

New  Haven  County  Bank  v.  Mitch- 
ell, 86. 

New  Jersey  R.  Co.  v.  Pollard,  298. 
Newlin  v.  Osborne,  118,  119. 
Newman,  Ex  parte,  20,  197. 
Newman  v.  Growls,  105. 

v.  Jenkins,   255,   259,   262. 
v.  King,   135. 
v.  Moore,  557. 
v.  Newman,  565. 
v.  Stein,  38. 
v.  Studley,  347. 
Newnam's    Lessee    v.    'Cincinnati, 

345. 

New    Orleans    v.    Games'    Adm'r, 
531. 

v.  Halpin,    96. 
v.  Labatt,  402. 
v.  Ripley,  448. 
v.  Steamship,  392. 
New    Orleans    Canal    &   B.    Co.    v. 
Montgomery,  126. 
v.  Templeton,   388. 


New  Orleans,  J.  &  G.  N.  R.  Co.  v. 

Allbritton,  296. 

Newport  &  C.  Bridge  Co.  v.  Doug- 
lass, 489. 

New  Portland  v.  Kingfleld,  80,  172. 
Newson  v.  Axon,  285. 

v.  Lycan,  506. 
Newton  v.  Carbery,  110. 

v.  Cocke,  225. 
New  York  Life  Ins.  Co.  v.  Davis, 

172. 
New  York,  N.  H.   &  H.  R.   Co.  v. 

Sayles,  213. 
New  York  Rubber  Co.  v.  Rothery, 

557,  560,  565. 

New  York  &  H.  R.  Co.  v.  Haws,  342. 
Nexsen  v.  Nexsen,  186,  215. 
Niantic  Bank  v.  Dennis,  91. 
Nichol  v.  Steger,  145. 
Nicholas  v.  Farwell,  105. 

v.  Ward,  174. 

Nicholls  v.  Wentworth,  354. 
Nichols   v.  Boston,   355,   356,   359. 

v.  Bridgeport,  89. 

v.  Day,  493,  501. 

v.  McCarthy,  181. 

v.  Munsel,  17. 

v.  Nichols,  206. 

v.  Oregon    S.  L.  R.  Co.,  84. 

v.  Patten,  172. 

v.  Peck,  567. 
Nicholson  v.  Caress,  520. 

v.  Spencer,  145. 

v.  Wilborn,  144,  145. 
Nickrans  v.  Wilk,  100,  106. 
Nickum    v.    Burckhardt,    497,    499, 

554. 

Nicodemus  v.  Young,  150,  517. 
Nicol  v.  Crittenden,  206. 
Nieto's  Heirs  v.  Carpenter,  349,  350, 
357,  363,  541. 


TABLE  OF  CASES. 


645 


[REFERENCES  ARE  TO  PAGES.] 


Nightingale  v.  Chafee,  317. 
Nilson  v.  Maltby,  551. 

v.  United  States,  370. 
Nims  v.  Sherman,  551. 
Nitche  v.  Earle,  91. 
Nitro-Glycerine  Case,  268,  270,  272. 
Nixon  v.  Palmer,  152. 

v.  Wichita  L.  &  C.  Co.,  151,  258. 
Nixon's  Heirs  v.  Carco's  Heirs,  348. 
Noble's  Adm'r  v.  Moses,  183. 
Noecker  v.  People,  44. 
Noel  v.  Karper,  338. 

v.  Murray,  319. 
Nofire  v.  United  States,  115. 
Nolan  v.  Traber,  190. 
Nonnemacher  v.  Nonnemacher,  330. 
Norcross  v.  Norcross,  286. 
Norfolk  &  P.  R.  Co.  v.  Ormsby,  141. 
Norfolk  &  W.  R.  Co.  v.  Brown,  162, 

169. 
Norman  v.  Georgia  L.  &  T.  Co.,  335. 

v.  Kentucky    Board    of    Mana- 
gers, 395. 

v.  Norman,  227. 
Normant  v.  Eureka  Co.,  348. 
Norris,  In  re,  356. 
Norris  v.  Harris,  226,  227,  230,  231. 

v.  State,  526. 

v.  Vance,  222. 

North  v.  Henneberry,  517,  530,  538. 
North   American   Fire  Ins.   Co.  v. 

Throop,  375,  405. 
North   Birmingham   St.   R.   Co.   v. 

Calderwood,  281. 
North  Chicago  St.  R.  Co.  v.  Louis, 

25,  279. 

Northcut  v.  Lemery,  103,  105. 
North  Eastern  R.  Co.  v.  Chandler, 

432. 

Northern  Bank  v.  Porter  Township 
Trustees,  524,  527. 


Northern  Kan.  Town  Co.  v.  Oswald, 

116. 

Northern  Pac.   R.  Co.  v.  O'Brien, 
279. 

v.  Townsend,  356. 
Northfield  v.  Plymouth,  241,  242. 

v.  Vershire,  237. 

North    Pa.    R.    Co.    v.    Adams,    36, 
304. 

v.  Commercial  Bank,  9. 
North    Point    Consol.    Irr.    Co.    v. 

Utah  &  S.  L.  Canal  Co.,  358. 
North  River  Meadow  Co.  v.  Christ 

Church,  134. 
North  Western  Mfg.  Co.  v.  Wayne 

Circ.  Judge,  420. 
Northwestern  N.   P.   Co.   v.   Shaw, 

546,  548. 
Northwestern  Union  Packet  Co.  v. 

Shaw,  547. 
North  &  S.   Rolling   Stock  Co.   v. 

People,  109. 

Norton  v.  Marden,  216. 

v.  Paxton,  334. 

v.  Tingley,  332. 

v.  Wallace,  503. 

Norwell  v.  Little,  305,  307,  308,  310. 

v.  McHenry,  394,  395. 
Norwood  v.  Kirby's  Adm'r,  504. 
Nottige  v.  Prince,  182. 
Nourse  v.  Nourse,  536. 
Nowack  v.  Metropolitan  St.  R.  Co., 

160. 

Nueva  Anna,  The,  409,  410. 
Nugent  v.  Powell,  462. 
Nunn  v.  Sturges,  104. 

O. 

Oaks  v.  Harrison,  18,  172. 
Oaksnvith's  Lessee  v.  Johnston,  350. 
Oard  v.  Oard,  180. 


646 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  PAGES.] 


Obart  v.  Letson,  321. 
Obenstein's  Appeal,  246. 
O'Brien  v.  Hilburn,  344. 
v.  Manwaring,  509. 
v.  Miller,  269. 
v.  Wetherell,  550. 
Oceanic  S.   Nav.   Co.   v.   Compania 

T.  E.,  494,  495. 
Och  v.  Missouri,  K.  &  T.  R.   Co., 

172,  298. 

O'Connell  v.  People,  326,  329. 
O'Connor  v.  Missouri  Pac.  R.  Co., 

278. 

v.  O'Connor,  121. 

Odd  Fellows'  Ben.  Ass'n  v.  Carpen- 
ter, 236,  237. 
Odell  v.  Moss,  179,  181. 
O'Donnell  v.  Rodiger,  333,  335. 

v.  Segar,  176. 
Oechs  v.  Cook,  464. 
Offutt      v.      World's      Columbian 

Exp.,  8. 
O'Gara  v.   Eisenlohr,   49,   235,   238, 

241,  242,  252,  255. 
Ogborn  v.  Hoffman,  222. 
Ogden  v.  Lund,  419. 
O'Herron  v.  Gray,  559. 
Ohio  v.  Hinchman,  415. 
Ohio  &  I.  R.  Co.  v.  Ridge,  401. 
Oinson  v.  Heritage,  192. 
O'Keeffe  v.  First  Nat.  Bank,  341. 
O'Kelly  v.  Felker,  261. 
Okeson  v.  Patterson,  358. 
Olden  v.  Hubbard,  306. 
Oldham  v.  Kerchner,  37. 

v.  Mclver,  512. 
Olds  v.  Powell,  123. 
Olds  Wagon  Co.  v.  Benedict,  20. 
Olferman  v.   Union   Depot  R.   Co., 

299. 

Oliphant  v.  Burns,  519,  522. 
Olive  v.  State,  428. 


Oliver  v.  State,  199. 

Oliver's  Ex'rs  v.  Palmer,  392. 

Oliver  Ditson  Co.  v.  Bates,  559. 

Ollive  v.  State,  162. 

Olney  v.  Blosier,  84. 

Olson   v.    Peterson,    236,   239,    243. 

v.  Schultz,  494. 
Omaha  v.  Ayer,  278. 
O'Neal  v.  Boone,  172. 
Oneale  v.   Com.,   244. 
O'Neil  v.  New  York  &  S.  P.  Min. 

Co.,  148. 

Opinion  of  the  Justices,  94,  389. 
Opinion  of  Sup.  Ct,  555. 
Oppenheim  v.  Wolf,  429. 
Orange,   A.  &  M.  R.   Co.  v.  Miles, 

273. 
Or.  Const.  Co.  v.  Allen  Ditch  Co., 

354,  358,  359,  362. 
Oregon  S.  S.  Co.  v.  Otis,  84,  88. 
Oregonian  R.  Co.  v.  Oregon  R.  & 

Nav.  Co.,  489. 
O'Reilly  v.  New  York  &  N.   E.  R. 

Co.,  228. 

Oren  v.  Pingree,  439. 
Oriental  Hotel  Ass'n  v.  Faust,  285. 
Orlando  v.  Gooding,  132,  133. 
Ormes  v.  Dauchy,  224,  228. 
Ormrod  v.  .Huth,  207. 
Ormsby  v.  Barr,  148. 
v.  Rhoades,  303. 
O'Rourke    v.    John    Hancock   Mut. 

L.  Ins.  Co.,  37. 
Ort  v.  Fowler,  212. 
Orth  v.  Orth,  185. 

Orthwein  v.  Thomas,  246,  500,  534. 
Ortwein  v.  Com.,  23,  327. 
Osborn  v.  Allen,  253. 

v.  Blackburn,  225,  231,  415. 
Osborne  v.  Endicott,  528. 
Osburn  v.  Throckmorton,  220. 
Oscanyon  v.  Arms  Co.,  469. 


TABLE  OF  CASES. 


647 


[REFERENCES  ARE  TO  PAGES.] 


Osgood  v.  Abbott,  530,  545. 

v.  Groseclose,  30. 

v.  Los    Angeles   Traction    Co., 
297. 

v.  Manhattan  Co.,  502. 

v.  Nichols,  552. 
Osterhoudt  v.  Rigney,  487. 
Osterhout  v.  Shoemaker,  516. 
Oswald  v.  Legh,  305. 
Otis  v.  McMillan,  551. 
Otis  Co.  v.  Missouri  Pac.  R.  Co., 

292. 

Ott  v.  Soulard,  417. 
Ottawa  G.  L.  &  C.  Co.  v.  Graham, 

449,  451. 

Ouderkirk  v.  Cent.  Nat.  Bank,  283. 
Ouverson  v.  Grafton,  278,  282. 
Overseers  of  the  Poor  v.  Gullifer, 

104. 
Owen  v.  Baker,  97. 

v.Boyle,  225,  403,  412,  416,  417. 

v.  Dewey,  26. 

v.  Hall,  137. 

v.  Long,  222. 

v.  Shepard,  111. 
Owens  v.   Richmond  &  D.  R.   Co., 

68,  279,  281. 

Owensboro  Wagon  Co.  v.  Bliss,  545. 
Owings  v.  Hull,  397. 

v.  Tucker,  124. 
Oxford  v.  McFarland,  ?03. 
Oxier  v.   United  States,  49,  367. 

P. 

Pacific  Exp.  Co.  v.  Foley,  213. 
Packard  v.  Getman,  154. 

v.  Oregon  Cent.  R.  Co.,  110. 
Packer,  E.  A.,  The,  402. 
Paddock  v.  Somes,  504. 
Page  v.  Butler,  526. 

v.  Danaher,  136. 

v.  Faucet,  423,  424,  445,  447. 


v.  Findley,  36,  150. 

v.  Home,  180. 

v.  Osgood,  19. 

v.  Stephens,  159. 

v.  Trufant,  116. 
Pagett  v.  Curtis,  391. 
Paige  v.  Willet,  463. 
Paine  v.  Dwinel,  317. 

v.  Edsell,  134. 

v.  Schenectady    Ins.    Co.,    415, 

489. 
Palfrey  v.  Portland,  S.  &  P.  R.  Co., 

225,  413. 
Palmer  v.  Aldridge,  402. 

v.  Atchison,  T.  &  S.  F.  R.  Co., 
231. 

v.  Hussey,  506. 

v.  McMaster,  101. 

v.  Oakley,  100,  101. 

v.  Palmer,  124. 

v.  Poor,  464. 
Palmer's    Ex'r    v.    Dubois'   Adm'r 

315. 

Pana  v.  Bowler,  129. 
Papin  v.  Ryan,  396. 
Paquete  Habana,  The,  418,  445. 
Paramore  v.  Lindsey,  135,  136. 
Parent  v.   Walmsly's  Adm'r,  397. 
Parfltt   v.   Lawless,   181,   182. 
Paris  v.  Lewis,  431. 
Parish  v.  Kaspare,  366. 
Parker  v.  Adams,  280. 

v.  Butterworth,  40. 

v.  Chancellor,  460. 

v.  Foote,  264,  356,  357,  359,  365, 

366. 
v.  Hotchkiss,  365. 

v.  Lanier,  462. 

v.  Leggett,  504. 
v.  Salmons,  121. 

v.  Smith,  526. 

v.    State.  167,  243,  258,  407,  427. 


648 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  PAGES.] 


Parkhurst  v.  Berdell,  489,  498. 

v.  Sumner,  503. 
Parkinson  v.  Sherman,  525. 
Parkison  v.  Bracken,  117. 
Parks  v.  Boston,  451. 

v.  Moore,  513. 

v.  Ross,  449. 

Parmelee  v.  Simpson,  121. 
Parr  v.  State,  493. 
Parrott  v.  Avery,  121. 
Parsons  v.  Aldrich,  108. 

v.  Grand  Lodge,  A.  O.  U.  W., 
151. 

v.  Keys,   145. 

v.  State,  21,  327. 
Partridge  v.  Patten,  519. 

v.  Strange,  441. 
Paton  v.  Colt,  130. 
Patterson  v.  Boston,  449,  451. 

v.  Gaines,  115,  245,  251. 

v.  Lawrence,   556. 

v.  McCausland,  420,  424. 

v.  Marine  Nat.  Bank,  283. 

v.  Prior,  218. 

v.  Rabb,  500. 

v.  State,  199. 

Pattillo  v.  Alexander,  226. 
Patton  v.  Bragg,  470. 
Patton  Adm'rs  v.  Ash,  322,  325. 
Paul  v.  Baugh,  173. 
Pawaskick,  The,  377,  414, 
Pawling  v.  Hoskins,  268. 
Pawtucket  v.  Bray,  495. 
Peabody  v.  Hewett,  251. 

v.  Oregon  R.  &  N.  Co.,  339. 
Peacock  v.  Bell,  99,  101. 
Peak  v.  Lemon,  191. 
Pearce  v.  Langfit,  427,  428,  429,  438, 

453. 

Pearl  v.  Allen,  473. 
Pearsall   v.   Eaton   County   Sup'rs, 
97. 


Pearson    v.    Darrington,    192,    193, 

391. 

Peary  v.  Hovey,  322. 
Pease  v.  Cole,  16,  17,  131. 

v.  Phelps,  465. 

v.  Smith,  164. 
Peavey  v.  Tilton,  124. 
Peck  v.  Elliott,  91,  232. 

v.  Sims,   384. 

v.  State,  489. 

Peckham  Iron  Co.  v.  Harper,  467. 
Peerless,  The,  413. 
Peet  v.  Hatcher,  226,  227,  228,  230. 
Peetz  v.   Saint  C.  St.  R.  Co.,  161, 

166. 
Pejepscut   Proprietors   v.   Ransom, 

95. 
Pelican    Ins.    Co.    v.    Troy    Co-op. 

Ass'n,  35. 

Pell  v.  Ball,  264,  265. 
Pellage  v.  Pellage,  303. 
Pelletreau  v.   Jackson,   519,   542. 
Pelton  v.  Platner,  104,  413. 
Pence  v.  Groan,  174. 
Pendlay   v.    Eaton,    332,    333,    334, 

335. 

Pendleton  v.  Cline,  18,  33. 
Pendrell  v.   Pendrell,  248. 
Pennington  v.  Gibson,  403. 
Pennington's     Ex'rs    v.    Yell,     64, 

268. 

Penn    Mut.  L.  Ins.  Co.  v.  Mechan- 
ics' S.  B.  &  T.  Co.,  172. 
Pennsylvania  v.  Bell,  200,  201. 
Pennsylvania  Co.  v.  Frana,  384. 

v.  Newmeyer,  157. 

v.  Stegemeier,  470. 
Pennsylvania  R.  Co.  v.  MacKinney, 
299. 

v.  Middleton,  272,  278. 

v.  Raiordon,  289,  293. 

v.  Shay,  211. 


TABLE  OF  CASES. 


649 


[REFERENCES  ARE  TO  PACES.] 


v.  Weber,  278. 
Pennybaker  v.  State,  188. 
Pennypacker  v.  Capital  Ins.  Co.,  84, 

86. 
Penobscot  Boom  Corp.  v.  Lamson, 

83,  110. 

Penrose  v.  King,  313. 
Pentland  v.  Keep,  360,  364. 
People  v.  Ackerman,  217. 

v.  Ah  Chung,  24. 

v.  Ah  Gee  Yung,  199,  204. 

v.  Ah  Sing,  370. 

v.  Aikin,  24. 

v.  Allender,  22,  327. 

v.  Arnold,  159. 

v.  Bawden,  22,  327. 

v.  Beaver,  369. 

v.  Beevers,  244. 

v.  Bodine,  163. 

v.  Boling,  201. 

v.  Breese,  382. 

v.  Briggs,  25,  66. 

v.  Brooks,  427. 

v.  Brown,  199,  555. 

v.  Buelna,  371. 

v.  Bushton,   199,   204. 

v.  Calder,  115. 

v.  Cannon,  7,  13,  373. 

v.  Ghee  Kee,  424,  445,  447,  452, 
453. 

v.  Chin  Hane,  160.. 

v.  Christman,  26. 

v.  Cline,  161,  368. 

v.  Coffman,  22,  327. 

v.  Cogswell,  117. 

v.  Cole,  102. 

v.  Constantino,  424,  445,  453. 

v.  Coughlin,  204. 

v.  Curley,  382. 

v.  D'Argencour,  409. 

v.  De  Fore,  54,  196. 

v.  De  la  Querra,  458. 


v.  Detroit  F.  Dep't,  112. 

v.  Dillon,  22,  328. 

v.  Dole,  23,  24,  159,  165,  166. 

v.  Downs,  204. 

v.  Dunn,  94. 

v.  Dyle,  162. 

v.  Ebanks,  381,  393. 

v.  Elliott,  204. 

v.  Erie   County   Medical   Soc., 

112. 

v.  Etting,  383. 
v.  Farnham,  96. 
v.  Faust,  383. 
v.  Feilen,  258. 
v.  Finley,  11,  20. 
v.  Flack,  199. 
v.  Fong  Ah  Sing,  203. 
v.  Francis,  337. 
v.  Garbutt,    13,    201,   202,   326, 

328. 

v.  Garcia,  469. 
v.  Gordon,  161,  369. 
v.  Grand  County  Com'rs,  96,  98. 
v.  Hagar,  401. 
v.  Hannon,  369,  370. 
v.  Hart,  369,  370,  435. 
v.  Hayes,  167,  473. 
v.  Herkimer,  397. 
v.  Hill,  397. 
v.  Hoch,   167. 
v.  Holladay,  488,  497. 
v.  Hovey,  166. 
v.  Humphrey,  244. 
v.  Hunt,  199. 
v.  Hurley,  372. 
v.  Johnson,  507. 
v.  Johr,  386,  388. 
v.  Kendall,  140. 
v.  Lacoste,  82. 
v.  Lambert,   244. 
v.  Lanagan,   204. 
v.  Levlsion,  369. 


650 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  PAGES.] 


v.  Loewenthal,  94. 

v.  Loomis,  225. 

v.  Lowden,  109. 

v.  Luchetti,  368. 

v.  Lyman,  387,  394. 

v.  McCann,  21,  329. 

v.  McCarthy,  202,  205. 

v.  McConnell,  393. 

v.  McDonnell,  373. 

v.  McElroy,  94. 

v.  McLeod,  153,  197. 

v.  McNulty,   22,   327. 

v.  McWhorter,   198. 

v.  Malaspina,  156. 

v.  Manhattan  Co.,  109,  150. 

v.  March,  200. 

v.  Martin,  93. 

v.  Mayes,  424,  445,  456,  457. 

v.  Maynard,  109. 

v.  Mayworm,  82. 

v.  Medart,  102. 

v.  Messersmith,   22,   53,   327. 

v.  Milgate,  203. 

v.  Mills,  161. 

v.  Mitchell,  368. 

v.  Mize,  199. 

v.  Morrow,  23. 

v.  Nevins,  394. 

v.  Nostrand,  82. 

v.  Oakland   Water   Front   Co. 

398,  441. 
v.  O'Brien,  196. 
v.  Oldham,  339. 
v.  Pearsall,  203. 
v.  Pease,  96. 
v.  Phillips,  83. 
v.  Potter,  399. 
v.  Powers,  420. 
v.  Randolph,  139. 
v.  Rice,  407,  435. 
v.  Ridgley,  82. 
v.  Riordan,  204. 


v.  River  Raisin  &  L.  E.  R.  Co., 
109. 

v.  Robinson,  382. 

v.  Rolfe,  194,  196. 

v.  Saint  George's  Soc.,  112:- 

v.  Sanders,   98,   166. 

v.  San  Francisco  Sup'rs,  220. 

v.  Sansome,  369. 

v.  Schmitt,  337. 

v.  Schryver,  202,  205. 

v.  Seaman,  167. 

v.  Sharp,  164. 

v.  Slack,  143. 

v.  Snyder,   119,   122,   418. 

v.  Squires,  150. 

v.  Stokes,  150. 

v.  Stone,  203. 

v.  Stratton,  82. 

v.  Streuber,  166. 

v.  Swineford,  43,  161,  169. 

v.  Thacher,  82,  83. 

v.  Thompson,  381. 

v.  Tinder,  197. 

v.  Townsend,  138. 

v.  Truckee  Lumber  Co.,  428. 

v.  Tyler,  166. 

v.  Utica  Ins.  Co.,  109. 

v.  Ward,  22,  327. 

v.  Western  Union  Tel.  Co.,  440. 

v.  Williams,  407. 

v.  Wolf,  199. 

v.  Wood,  382. 

v.  Wright,  187,  188. 
People's  M.  Assur.  Fund  v.  Boesse, 

465. 
Peoria  Gas  Light  &  Coke  Co.  v.  Pe- 

oria  Terminal  R.  Co.,  451. 
Peoria,  P.  &  J.  R.  Co.  v.  Reynolds, 

297. 

Peppercorn   v.   Black   River   Falls, 
449. 


TABLE  OF  CASES. 


651 


[REFERENCES  ARE  TO  PACES.] 


Perdicaris  v.  Trenton  City  Bridge 

Co.,  398. 

Perez  v.  Everett,  211. 
Perkins  v.  Coleman,  517,  522,  535. 

v.  Hitchcock,  161. 

v.  Nugent,  90. 

v.  Perkins,   332,   335. 

v.  Prout,  129. 

v.  Rogers,  298,  387,  419,  426. 

v.  Sanders,    110. 

v.  Walker,  512. 

v.  Weston,  344. 
Perley  v.  Perley,  128. 
Perot  v.  Cooper,  24,  125,  304,  341. 
Perrin  v.  Garfield,  366. 

v.  Keene,  317. 

v.  Perrin,  "520. 

v.  Wilson,  144. 

Perry  v.  German  American  Bank, 
88. 

v.  Lawless,  562. 

v.  New  Orleans,  M.  &  C.  R.  Co., 
401,  422. 

v.  Perry,  303. 

v.  Salt  Lake  City,  96. 

v.  Simpson  W.   Mfg.   Co.,   473, 
475. 

v.  Thompson,  213. 

v.  Weeks,  344. 
Perry  County  v.  Selma  M.  &  M.  R. 

Co.,  94. 

Pershing  v.  Canfleld,  551. 
Person  v.  Wright,  425. 
Persons  v.  State,  265. 
Petch  v.  Lyon,  469. 
Peterhoff,  The,  420. 
Peterkin  v.  Inloes,  259. 
Peters  v.  Little,  361. 
Peters  B.  &  L.  Co.  v.  Lesh,  557. 
Peterson,  Ex  parte,  393. 
Peterson   v.   Brown,   539. 

v.  Chemical  Bank,  225. 


v.  Haffner,   141. 

v.  McCullough,  366. 

v.  Seattle  Traction  Co.,  296. 
Petrie  v.  Badenoch,  511. 

v.  Nuttall,  492. 
Pettee  v.  Prout,  341. 
Pettingill  v.  McGregor,  236,  245. 
Pettit  v.  May,  401,  403. 

v.  State,  428,  429. 
Peugh  v.  Mitchell,  135. 
Peyroux  v.  Howard,  428. 
Peyton  v.  State,  203. 
Pfeiffer  v.  Detroit  Board  of  Edu- 
cation, 436. 

Pflaum  v.  McClintock,  177. 
Phadenhauer  v.  Germania  L.  Ins. 

Co.,  331. 
Phelan  v.  Gardner,  507. 

v.  North  Western  L.  Ins.  Co., 

85. 

Phelin  v.  Kenderdine,  166. 
Phelps  v.  Com.,  22,  327. 

v.  Cutler,  38. 

Phene's  Trusts,  In  re,  259. 
Phenix  Ins.  Co.  v.  Pickel,  37. 
Phenix  M.  L.  Ins.  Co.  v.  Clark,  460. 
Phifer  v.  Carolina  Cent.  R.  Co.,  214. 
Philadelphia  City  Pass.  R.  Co.  v. 

Henrice,  64. 
Philadelphia  M.  £  T.  Co.  v.  Omaha, 

556. 

Philadelphia,  W.  &  B.   Co.   v.   An- 
derson, 298. 

v.  Lehman,  424. 

v.  Stebbing,  68,  270,  272,  281. 
Philadelphia  &  R.  R.  Co.  v.  Ander- 
son, 296. 

v.  Boyer,  272. 

v.  Obert,  344. 

Philadelphia  &  S.  R.  Co.  v.  Lewis, 
548. 


652 


TABLE  OF  CASES. 


[REFERENCES  ABE  TO  PAGES.] 


Philadelphia  &  T.  R.  Co.  v.  Stimp- 

son,  91. 

Philips  v.  Morrison,  306,  316. 
Phillip  v.  Gallant,  218. 
Philippi   v.   Philippe,   306. 
Phillippi  v.  Leet,  530. 
Phillips  v.  Adams,  307,  S09. 

v.  Allen,  245,  250,  251. 

v.  Berick,  512. 

v.  Breck's  Ex'r,  137. 

v.  Detroit,  420,  429. 

v.  Gregg,  301,  413. 

v.  Holman,  40. 

v.  'Louisiana    E.    L.    Ins.    Co., 
266,  267. 

v.  Milwaukee  &  N.  R.  Co.,  278. 

v.  Smith,  466,  467. 

v.  State,  198. 
Phillipson  v.  Hayter,  24. 
Philly  v.  Sanders,  518,  522. 
Phipps  v.  Mahon,  17,  33. 
Phoenix  Assur.  Co.  v.  mucker,  9. 

v.  McAuthor,  36. 
Phoenix  Ins.  Co.  v.  Flemming,  38. 

v.  Moog,  157. 
Pickard  v.  Sears,  558,  564. 
Pickens  v.  State,  203. 
Pickle  v.  Muse,  322,  323. 
Pickup  v.  Thames  &  M.  Ins.  Co.,  12, 

16,  17,  36,  50,  146,  147. 
Pico  v.  Webster,  478,  503. 
Piedmont  &  A.  L.  Ins.  Co.  v.  Ewing, 

31,  37,  42. 
Pierce  v.  Andrews,  568. 

v.  Drew,  397. 

v.  Indseth,  411. 

v.  Pierce,  180. 

Pierre  v.  Fernald,  360,  362^  365. 
Pierro  v.  Saint  Paul  &  N.  P.  R.  Co., 

102. 

Piers  v.  Piers,  115. 
Pierson  v.  Baird,  397. 


Piggot  v.  Eastern  C.  R.  Co.,  274. 
Pike  v.  Pike,  330,  335,  336. 
Pilcher  v.  Hickman,  338. 
Pile  v.  McBratney,  300. 
Pillow  v.  Roberts,  90. 

v.  South  Western  Va.  Imp.  Co., 

533. 

Pillsbury  v.  Alexander,  534. 
Pin  v.  Morris,  486. 
Pinckney   v.   Western   Union   Tel. 

Co.,  287. 
Pinkerton  v.  Bailey,  127. 

v.  Woodward,  286. 
Pioneer  S.  &  L.  Co.  v.  Bartsch,  498. 
Piper  v.  Hoard,  553. 

v.  Manny,  286. 

v.  Pearson,  101,  103. 

v.  Wade,  321. 

Pipes  v.  Hardesty,  132,  137. 
Pitcher  v.  Dove,  563. 

v.  Patrick's  Adm'rs,  323. 
Pitt    v.    Berkshire    Life    Ins.    Co., 

549. 

Pittinger  v.  Pittinger,  151. 
Pitts  v.  Hartford  L.  &  A.  Ins.  Co., 
84,  87. 

v.  Oliver,  498,  509. 
Pittsburg,   C.   &   St.   L.   R.    Co.   v. 
Barrett,  213,  290. 

v.  Campbell,  274. 

v.  Williams,  297. 
Pittsburg,   F.   W.   &   C.   R.   Co.   v. 

Callaghan,  339. 

Pittsburg  &  C.  R.  Co.  v.  Pillow,  296. 
Pittsford  v.  Chittenden,  248. 
Pitzman   v.    Boyce,    354,    358,    359, 

363,  365. 

Pizarro,  The,  158,  162,  168. 
Place  v.  Rhem,  174. 
Plake  v.  State,  23,  326. 
Plath  v.   Minnesota  F.  M.  F.  Ins 
Ass'n  84,  86. 


TABLE  OF  CASES. 


653 


[REFERENCES  ARE  TO  PAGES.] 


Platt  v.  Richmondd,  Y.  R.  &  C.  R. 

Co.,  293. 
Platt's  Heirs  v.  McCullough's  Heirs, 

83. 

Platte  Valley  Bank  v.  Harding,  109. 
Pleak  v.  Chambers,  504. 
Plimpton  v  Converse,  361,  363. 
Plowes  v.  Bossey,  245,  250. 
Plume  v.  Seward,  345. 
Plumer  v.  Brisco,  80. 
Plummer  v.  Baskerville,  209. 

v.  State,  23. 
Poe  v.  Dorrah,  146. 
Poertner  v.  Poertner,  26. 
Polak  v.  Everett,  559. 
Poland  v.  Dreyfous,  383. 
Pole  v.  Leask,  83. 
Polk  v.  Butterfield,  412. 

v.  Rose,  89. 

Pollak  v.   Davidson,  162,  164,  166. 
Pollard  v.  State,  203. 
Pomeroy  v.  Benton,  158,  169. 
Pond  v.  Gibson,  39. 

v.  Makepeace,  502. 
Ponder  v.  Jerome  Hill  Cotton  Co., 
234. 

v.  Shumans,  116. 
Pool  v.  Pratt,  143. 
Poole  v.  People,  241,  243. 
Poorman  v.  Mills,  126. 
Pope  v.  Dodson,  324. 
Porschet  v.  Porschet,  185. 
Port  v.  Port,  236. 
Porter  v.  Doby,  136. 

v.  Judson,  388. 

v.  Knight,  461. 

v.  Waring,  384,  402. 

v.  Woodruff,  181. 

Port  Jervis  v.  First  Nat.  Bank,  495. 
Portland  v.  Richardson,  495. 
Portsmouth  Livery  Co.  v.  Watson, 
300,   400,   412. 


Portsmouth  Sav.  Bank  v.  Wilson, 

135. 
Post  v.  Mason,  186. 

v.  Supervisors,  396. 
Postal  Tel.  Cable  Co.  v.  Louisville, 

N.  O.  &  T.  R.  Co.,  83. 
Poston  v.  Jones,  322. 
Potez  v.  Glassop,  118. 
Potter  v.  Knowles,  345. 

v.  McDowell,  174. 

v.  Smith,  463. 

v.  Titcombr  308. 

v.  Washburn,  344. 
Potts  v.  Coleman,  322,  323. 

v.  Dowdall,  516,  522. 
Poulson  v.  Stanley,  175. 
Poultney  v.  Fairhaven,  242. 
Powell,  Ex  parte,  404,  422. 
Powell  v.  Holman,  96. 

v.  Milburn,  32. 

v.  Monson  &  B.  Mfg.  Co.,  540. 

v.  Rogers,  562. 

v.  Swan's  Adm'r,  304,  323. 
Powell's  Appeal,  540. 
Power  v.  Bowdle,  403,  404,  430,  431. 

v.  Kent,  470. 
Powers  v.  Kueckhoof,  464. 

v.  Patten,  522,  533. 

v.  Russell,  13,  16,  17,  120,  121. 
Prather  v  Palmer,  152. 
Pratt  v.  Conway,  469. 

v.  Curtis,  174. 

v.  Lamson,   365. 

v.  Langdon.  46,  128. 

v.  Myers,  174. 

v.  Pierce,  115. 

Pratt  C.  &  I.  Co.  v.  Brawley,  142. 
Preece  v.  Howells,  536. 
Preiner  v.  Meyer,  532. 
Prell  v.  McDonald,  399. 
Prentis  v.  Bates,  332. 
Press  Co.  v.  Stewart.  208. 


654 


TABLE  OP  CASES. 


[REFERENCES  ARE  TO  PAGES.] 


Presstman  v.  Stilljacks,  551. 

Preston  v.  Mann,  562. 

Prestwood  v.  Watson,  468,  469,  473. 

Prevost  v.  Gratz,  134,  306. 

Prewe  v.  Wisconsin  S.  L.  &  I.  Co., 

567. 
Price  v.  Gover,  172. 

v.  Hudson,  123. 

v.  Page,  427. 

v.  Philadelphia  W.  &  B.  R.  Co., 
162,  163,  272. 

v.  Price,  152,  260. 

v.  Springfield  R.  E.  Ass'n,  81, 
95,  102. 

v.  Weaver,  38. 
Prickett  v.  State,  254. 
Prideaux    v.    Mineral    Point,    278, 

282. 
Priewe  v.  Wisconsin  S.  L.  &  I.  Co., 

560. 

Prignon  v.  Dussat,  121. 
Primm  v.  Stewart,  253. 
Prince  v.  Alabama  State  Fair,  283. 

v.  Crocker,  375,  383,  408. 

v.  Griffin,  100. 

v.  Skillin,  387,  389. 

v.  State,  203,  370. 

v.  Wilbourn,  363. 
Prince  George,  The,  413. 
Pringle  v.  Dunn,  118. 

v.  Woolworth,  104. 
Printup  v.  Mitchell,  132,  133,  137. 
Pritchard  v.  Smith,  318. 
Pritchett  v.  Aherns,  555. 
Prize  Cases,  419. 
Probate  Judge  v.  Stone,  5,  20. 
Proctor  v.  Bennis,  564,  567. 

v.  De  Camp,  454. 

v.  McCall,   252. 

v.  Sears,  143. 

Protector,  The,  398,  419,  426. 
Prouty  v.  Mather,  530. 


Pruitt  v.  Pruitt,  123. 

Pryor  v.  Wood,  306. 

Puckett  v.  State,  256. 

Puffer  v.  Smith,  211. 

Puget  Sound  &  C.  R.  Co.  v.  Ouel- 

lette,  110. 
Pugh  v.  Grant,  129,  341. 

v.  State,  390. 
Pulaski  County  v.  State,  555. 

v.  Stuart,  103. 
Pullen  v.  Hutchinson,  118. 

v.  Shaw,  134. 

Pulliam  v.  Burlingame,  552. 
Purcel  v.  McNamara,  32. 
Purcell  v.  Purcell,  236,  243. 
Purdy  v.  Coar,  122,  525. 

v.  Erie  R.  Co.,  439. 
Purple  v.  U.  Pac.  R.  Co.,  295. 
Pusey  v.  Wright,  34. 
Putnam  v.  Sullivan,  561. 

v.  White,  420. 

Q. 

Queen  v.  Dyer,  423. 
Queen's  Case,  The,   155,   233. 
Quinlan  v.  Houston  &  Texas  C.  R. 

Co.,  93. 
Quinn  v.  Champagne,  384. 

v.  People,  166. 

v.  Quinn,  492. 

v.  Windmiller,  384. 
Quivey  v.  Baker,  520. 
Quock  Ting  v.  United  States,  9. 

R. 

Radenfeld  v.  Massachusettes  M.  A. 

Ass'n.  267. 
Rae  v.  Hulbert,  415. 
Ragland  v  Wynn's  Adm'r,  386. 
Railroad    &   T.    Go's    v.    Board    of 

Equalizers,  405. 
Railway  Co.  v.  Mossman,  354. 


TABLE  OF  CASES. 


655 


[REFERENCES  ABE  TO  PACES.] 


Raines  v.  Walker,  122,  123. 
Rains  v.  Hays,  301. 
Raisler  v.  Oliver,  284. 
Ralston  v.  Wood,  503. 
Ramsay  v.  McCanley,  407. 
Ramsdell  v.  Clark,  321. 
Ramsden  v.  Dyson,  559,  564. 
Ramsey  v.  Cheek,  208,  209. 
Rand  v.  Hanson,  105. 
Randall  v.  Collins,  49. 

v.  Lower,  501,  521. 

v.  Lynch,  471. 
Randel,  In  re,  162,  167. 
Randlett  v.  Rice,  241. 
Randolph  v.  Easton,  248. 
Ranger  v.  Gary,  127. 
Rankin  v.  Amazon  Ins.  Co.,  38. 

v.  Rankin,  185. 
Rankin's  Appeal,  504. 
Ranson  v.  Christian,  19,  34,  39. 
Rape  v.  Heaton,  231,  413,  415. 
Rapelye  v.  Prince,  495. 
Rapp  v.  Saint  J.  &  I.  R.  Co.,  68. 
Raridan  v  Central  Iowa  R.  Co.,  425. 
Rasmussen  v.  Baker,  408. 
Rauch  v.  Dech,  518,  538. 
Rawdon  v.  Rawdon,  330,  335. 
Rawley  v.  Brown,  342. 
Raworth  v.  Marriott,  215. 
Rea  v.  Durkee,  192. 

v.  Missouri,  176. 

v.  State,  23. 
Read  v.  Allen,  501. 

v.  Amidon,  285. 

v.  Robinson,  124. 

v.  Saint  Louis,  K.  C.  &  N.  R. 

Co.,  290,  292. 
Reading  F.   I.   &  T.  Co. 'a   Appeal, 

239,  240. 
Rector  v.  Morehouse,  308. 

v.  Rector,  158,  169. 
Reddick  v.  State,  167. 


Redell  v.  Moores,  375,  420,  426. 
Redgrave    v.    Redgrave,    116,    236, 

238,  243,  244,  245. 
Redman  v.  Aetna  Ins.  Co.,  37. 
Redmond  v.  Anderson,  102. 

v.  Collins,  492. 

v.  Excelsior  S.  F.  &  L.  Ass'n, 

553. 
Reed  v.  Boshears,  222. 

v.  McCourt,  528. 

v.  Noxon,  176. 

v.  Reed,  312,  316. 

v.  Shepley,  345. 

v.  Vaughn,  102. 

v.  Western  U.  Tel.  Co.,  287. 

v.  Wilson,  404,  424. 
Reeder  v.  Nay,  317. 
Reedy  v.  Camfleld,  106. 

v.  Millizen,  260. 
Rees  v.  Stille,  215,  233. 
Reese  v.  Harris,  225. 

v.  Reese,  466. 

v.  Smith,  522. 
Reeve  v.   Liverpool,   London  &   G. 

Ins.  Co.,  129. 
Reeves  v.  State,  196. 
Regina  v.  Brimilow,  139,  140. 

v.  Broadhempston,  93. 

v.  Burton,  369. 

v.  Castro,    159,    168,   169. 

v.  Cradock,  115. 

v.  Crowhurst.  371. 

v.  Dredge,  369. 

v.  Exall,  369,  370.  371. 

v.  Harris,  371. 

v.  Hill,  201. 

v.  Hughes,  371. 

v.  James,  370. 

v.  John,  187,  188. 

v.  Jones,  452. 

v.  Jordan,  139. 

v.  Langmead,  368,  369. 


656 


TABLE  OF  CASES. 


[REFERENCES  ABE  TO  PAGES.] 


v.  Layton,  327. 

v.  Levy,  194,  196. 

v.  Lumley,  258. 

v.  Mailloux,  217. 

v.  Mainwaring,  115. 

v.  Mansfield,  249,  250. 

v.  Matthews,  188. 

v.  Murrey,  248. 

v.  Newton,  80. 

v.  O'Doherty,  7. 

v.  Philips,  140. 

v.  Pratt,  369. 

v.  Rhodes,  167. 

v.  Roberts,  373. 

v.  Simmonsto,  243. 

v.  Smith,  138,  200. 

v.  Tewkesbury,  217. 

v.  Torpey,  187,  188. 

v.  Totness,  101. 

v.  Twose,  217. 

v.  Vamplew,  138. 

v.  Waite,  139. 

v.  Willishire,  258. 
Regins  v.  Drury,  489. 
Reich  v.  Cochran,  468. 
Reid  v.  Boyd,  104. 

v.  Evansville  &  T.  H.  R.  Co., 
292. 

v.  Reid,  321. 

v.  State,  539,  555. 
Reimer  v.  Stuber,  354,  359,  360, 

361,  366. 

Reinhart  v.  Blackshear,  100. 
Reinken  v.  Fuehring,  436. 
Reliance,  The,  296. 
Remington  Paper  Co.  v.  O'Dougher- 

ty,  123. 

Renaud  v.  Abbott,  457. 
Renfro  v.  Harrison,  124. 
Renn  v.  Samos,  332. 
Respublica  v.  Davis,  503. 
Resser  v.  Carney,  522,  543. 


Rex.  v. 


-,  371. 


v.  Alberton,  248. 

v.  Almon,  233. 

v.  Amery,  110. 

v.  Brampton,  115. 

v.  Budd,  152. 

v.  Burdett,  43,  49,  160. 

v.  Butler,  115. 

v.  De  Berenger,  397,  419. 

v.  Dixon,  188,  199. 

v.  Duchess    of    Kingston,    490, 

507,  511. 

v.  Eldershaw,  140. 
v.  Farrington,  199. 
v.  Fuller,  370,  373. 
v.  Gordon,  81,  143. 
v.  Gouge,  447. 
v.  Hall,  217. 
v.  Harborne,  258. 
v.  Hawkins,  81. 
v.  Heath,  373. 
v.  Holt,  377. 
v.  Howard,  80. 
v.  Hughes,  187,  188. 
v.  Hunt,  157,  159. 
v.  King's  Langley,  138. 
v.  Knight,  188. 
v.  Knollys,  389. 
v.  James,  115. 
v.  Jones,  386. 
v.  Leigh,  82. 
v.  Long  Buckby,  117. 
v.  Luffe,  247,  248,  432. 
v.  Maidstone,  248. 
v.  Morris,  188. 
v.  Owen,  138. 

v.  Parish  of  All  Saints,  102, 
v.  Parker,  373. 
v.  Partridge,  371. 
v.  Price,  187. 
v.  Rosenstein,  373. 
v.  Sheppard,  201. 


TABLE  OP  CASES. 


657 


[REFERENCES  ARE  TO  PAGES.] 


v.  Sutton,  373. 

v.  Tanner,  152. 

v.  Turner,  45. 

v.  Twyning,  256,  257. 

v.  Verelst,  81. 

v.  Walter,  233. 

v.  Whiston,  91. 

v.  Wilde,  389. 

v.  Withers,  377. 

v.  Woodward,  423. 
Reynolds  v.  Accident  Ins.  Co.,  266. 

v.  Cook,  520. 

v.  Fleming,  100. 

v.  New   York   Cent.   &   H.   R. 
Co.,  432,  450. 

v.  Stansbury,  100,  102. 

v.  State,  217,  258. 
Rhea  v.  Bagley,  124. 
Rhoades  v.  Chesapeake  &  O.  R.  Co., 

37. 
Rhodes  v.   Bate,   183. 

v.  Naglee,   430. 

v.  Rhodes,  259. 

v.  State,  23. 
Rhone  v.  Gale,  122,  148. 
Ribbans  v.  Crickett,  471. 
Ricard  v.  Williams,  344,  345,  347, 

349,  350. 
Rice  v.  Com.,  161. 

v.  Dwight  Mfg.  Co.,  218. 

v.  Montgomery,  428,  429. 

v.  St.   Louis,   A.    &   T.   R.   Co., 
532,  533. 

v.  Shook,  426. 
Rich  v.  Lambert,  290. 
Richard  v.  Brehm,  243. 

v.  Hupp,  364. 
Richards  v.  Kountz,  232. 

v.  Nixon,  20. 

v.  Purdy,  233. 

v.  Skiff,  100. 


v.  Snider,  431. 

v.  Vaccaro,  173,  175. 
Richardson  v.  Burleigh,  26. 

v.  Fellner,   117,   135. 

v.  Powell,  515. 

v.  Rhodus,   174. 

v.  Smith,  93. 

Richelieu  Hotel  Co.  v.  Internation- 
al M.  E.  Co.,  67,  123. 
Richmond  v.  Aiken,  64. 

v.  Southern  Pac.  Co.,  291. 
Richmond's  Appeal,  186. 
Richmond  Ry.  &  El.  Co.  v.   Gart- 

right,  470. 
Richmond   &   D.   R.   Co.   v.   Trous- 

dale,  288. 

Ricketson  v.  Galligan,  109. 
Ricketts  v.  Jolliff,  336. 
Rickman's  Case,  369. 
Riddell  v.  Johnson's  Ex'r,  186. 
Riddle  v.  Baker,  503. 
Riddlehoover  v.  Kinard,  347. 
Ridgway,  In  re,  264. 
Riepe  v.  Siting,  269,  277. 
Rigg  v.  Wilton,  19. 
Rigge  v.  Burbidge,  471. 
Riggin  v.  Collier,  382. 
Riggs  v.  Pacific  &  N.  E.  R.  Co.,  158. 

v.  Pursell,  562. 
Right  v.  Bucknell,  525. 
Rigney  v.  Rigney,  565. 
Riker  v.  Hooper,  26,  492. 
Riley  v.  Lee,  207. 

v.  Norton,  25. 

v.  Riley,  131. 

v.  Stein,  526. 
Ripley  v.  Babcock,  336. 

v.  Burgess,  395. 

v.  Case,  431. 

v.  Hebron,  152. 

v.  Warren,  393. 


658 


TABLE  OF  CASES. 


[BEFEBENCES  ABE  TO  PAGES.] 


Rippey  v.  Miller,  27. 

Ritchie  v.   Carpenter,   13,   81,  104, 

105,  194. 
Rittenhouse   v.    Independent   Line 

of  Tel.,  287. 
Ritter  v.  Mutual  L.  Ins.  Co.,  331. 

v.  Scannell,  94. 

Rittmaster  v.  Brisbane,  121,  125. 
Rivers  v.  Gregg,  144,  145. 
Rixford  v.  Miller,  152. 
Roach  v.  Karr,  212. 

v.  Kentucky      Mut.      Security 

Fund  Co.,  37. 
Roadwell  v.  Redge,  46. 
Roath  v.  Driscoll,  365. 
Robards  v.  Marley,  225. 
Robb   v.   Pennsylvania   Co.,   559. 

v.  Shephard,  553. 

v.  State,  367,  368. 
Robbins  v.  Bunn,  486. 

v.  Chicago,  495. 

v.  Rascoe,   125. 

v.  Townsend,    324. 
Roberse  v.  Burnham,  26. 
Roberson  v.  Rochester  Folding  Box 

Co.,  465. 
Roberts  v.  Chittenden,  32. 

v.  Ogdensburgh  &  L.  C.  R.  Co., 
157. 

v.  People,  199. 

v.  Smith,  311. 

v.  Tennell,  474. 

v.  Wilcoxson,  324. 
Robertson  v.  Daley,  516. 

v.  Du  Bose,  194. 

v.  Pickrell,  529,  550,  551. 

v.  Sayre,  463. 

v.  Staed,  104,  105. 

v.  Struth,  105. 
Robins  v.  Maidstone,  463. 
Robinson  v.  Adams,  331. 

v.  Baskins,  496. 


v.  Bates,  535,  539. 

v.  Bierce,  37. 

v.  Bland,  224. 

v.  Brewster,  215. 

v.  Brown,   390. 

v.  Gallier,  263,  264. 

v.  Oilman,  410. 

v.  Glass,  211,  212. 

v.  Gould,  123. 

v.  Hitchcock,  19,  34. 

v.  Myers,  135,  136,  137. 

v.  Nail,  18. 

v.  Randall,  26. 

v.  Read,    316. 

v.  State,  39,  139. 

v.  Western    Pac.    R.    Co.,    278, 
281. 

v.  Woodford,  165. 
Robinson  Bank  v.  Miller,  553. 
Robson  v.   Crew,   234. 

v.  Rawlings,  148. 

v.  Fraser,  283. 
Rochester,  H.  &  L.  R.  Co.,  In  re, 

114. 

Rockafellow  v.  Newcomb,  180,  181. 
Rock  Island  County  v.  Steele,  381. 
Rock  Island  Nat.  Bank  v.  Nelson, 

130. 

Rockland  v.  Morrill,  253. 
Rockwell  v.  District  Court,  488. 

v.  Langley,  514. 

v.  Tayler,  469. 
Rodemeier  v.  Brown,  120. 
Roden  v.  State,  202,  205. 
Roderigas  v.  East  River  Sav.  Inst, 

102,  263. 
Rodgers  v.  Rodgers,  337. 

v.  State,  390,  424. 
Rodini  v.  Lytle,  503. 
Rodriguez  v.  Haynes,  132,  133. 
Roe  v.  Harvey,   159. 

v.  Ireland,   349. 


TABLE  OP  CASES. 


659 


[REFERENCES  ARE  TO  PAGES.] 


Roebotham  v.  Wilson,  364. 
Roehl  v.  Porteous,  230,  231. 
Rogers  v.  Armstrong  Co.,  326. 

v.  Arnold,  343. 

v.  Benton,  148. 

v.  Bishop,  305. 

v.  Cady,  384,  390,  445,  446,  447, 
456. 

v.  Cawood,   515. 

v.  Clements,  308,  315. 

v.  Donnellan,  530. 

v.  Gosnell,  123. 

v.  Haines,  493. 

v.  Ingham,  220. 

v.  Judd,  313,  314,  315. 

v.  Miller,  106. 

v.  Odell,  104. 

v.  Traders'    Ins.   Co.,   18. 

v.  Walker,  336., 

v.  Wood,  486. 

v.  Zook,  225. 
Rohr  v.  Alexander,  120. 
Roller  v.  Kling,  332,  335. 
Rollwagen  v.  Rollwagen,  215. 
Rolseth  v.  Smith,  279. 
Ronkendorff  v.  Taylor's  Lessee,  80, 

89. 

Rooker  v.  Perkins,  354,  359. 
Root  v.  Crock,  520,  525. 

v.  French,  563. 

v.  McFerrin,  104,  108. 
Rorer   Iron   Co.   v.   Trout,   562. 
Rose  v.  Blakemore,  166. 

v.  Clark,  241,  243. 

v.  Himely,  409,  411. 

v.  Rose,  241. 

v.  Stephens  &  C.  Transp.  Co., 

270,  272. 
Rosenbaum  v.  Newbern,  434. 

v.  State,  469. 
Rosenfleld  v.  Swenson,  303. 


Rosenthal  v.  Renick,  502. 

v.  Walker,  84,  87. 
Ross  v.  Austin,  390. 

v.  Boswell,    424,    425. 

v.  Conway,  182. 

v.  Crockett,  113. 

v.  Doland,  212. 

v.  Drinkard's  Adm'r,  221. 

v.  Hunter,  172. 

v.  Reddick,  385. 

v.  Ross,  192. 

v.  Smith,  341. 

v.  Thompson,   359. 
Roswald  v.  Hobble,  175,  526. 
Roth  v.  Jacobs,  246. 
Rothrock  v.  Perkinson,  19. 
Rothschild  v.  American  Cent.  Ins. 

Co.,  27. 

Roulston  v.  Hall,  490. 
Roundtree  v.  Brantley,  364. 
Rountree  v.  Benson,  521. 
Rowe  v.  Grenfel,  404,  405. 

v.  Hasland,  150,  300. 
Rowland  v.  Miller,  437. 

v.  Updike,  358. 

v.  Windley,  312. 
Rowley  v.  Berrian,  431. 

v.  Howard,  102. 
Royal   Ins.  Co.   v.   Byers,   567. 

v.  Schwing,  19,  38,  41. 
Rubey  v.  Culbertson,  341. 
Rucker  v.  Palsgrave,  471^ 

v.  Steelman,  505. 
Ruckman  v.  Cowell,  102. 
Ruddell  v.  Landers,  129,  130. 
Rudy  v.  Austin,  174. 

v.  .Com.,  204. 

v.  Ulrich,  185. 

Rufflno's  Estate,   In   re,   237,   242. 
Ruffner  v.  Cincinnati,  H.  ft  D.  R. 
Co.,  275. 


660 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  PAGES.] 


Ruloff  v.  People,  167,  262. 

Runkle  v.  Durham,  159. 

Runlet  v.  Otis,  530. 

Runner's  Appeal,  312. 

Runyan  v.  Price,  332. 

Rupert  v.  Penner,  194. 

Ruse  v.  Mutual  B.  L.  Ins.  Co.,  225. 

Rush  v.  Landers,  175,  412,  413,  417. 

v.    Mesee,    333,    335. 
Rushin  v.   Shields,   121. 
Rusling  v.  Rusling,  186. 
Russ  v.  Alpaugh,   532. 
Russell  v.  Allerton,  235. 

v.  Buckley,  84. 

v.  Fagan,  286. 

v.  Hallett,   263. 

v.  Martin,  431. 

v.  McDowell,  97. 

v.  McLellan,  110. 

v.  Place,  513. 

v.  Sargent,  393. 

v.  State,  217. 
Russell's    Heirs    v.    Marks'    Heirs, 

348. 

Rust  v.  Eckler,  195. 
Ryan,  Ex  parte,  197. 
Ryan  v.  Ashton,  182. 

v.  Baltimore  &  O.  R.  Co.,  339. 

v.  Leavenworth,    A.    &    N.    R. 
Co.,  114. 

v.  Louisville,    N.    O.    &   T.    R. 
Co.,  281. 

v.  McLane,  465. 

v.  Missouri,    K.    &   T.    R.    Co., 
213,  292. 

v.  State,  369,  370. 

v.  Tudor,   253,   255,   257. 

v.  World   M.   L.   Ins.   Co.,   212. 
Ryan's  Case,  189. 
Ryder  v.  Hathaway,   347. 

v.  Kinsey,  271,  277. 

v.  Mansell,  551. 


v.  State,   23. 
v.  Wombwell,    8. 
Ryerson  v.  Chapman,  497. 

S. 

Sabargiego  v.  Maverick,  89. 
Sabin  v.  Columbia  Fuel  Co.,  173. 
Sacalaris  v.  Eureka  &  P.  R.  Co., 

438. 

Sachse  v.   Clingingsmith,   107. 
Sackett  v.  Mansfield,  206. 
Sacramento  County  v.  Central  Pac. 

R.  Co.,  387. 

Saderquist   v.    Ontario   Bank,    563. 
Sadler  v.  Anderson,  93,  233. 
Sadler's  Adm'r  v.  Kennedy's  Adm'r, 

308. 

Safe  Deposit  Co.  v.  Pollock,  283. 
Sage  v.  Board  of  Liquidation,  98. 
Sager  v.  Portsmouth,  S.  &  P.  &  E. 

R.  Co.,  291,  292. 
Sahlinger  v.  People,  369. 
Sailor  v.  Hertzogg,  195. 
St.  Glair  v.  Rutledge,  556, 
St.    James    Military    Academy    v. 

Gaiser,  207. 

St.  John  v.  Quitzow,  551. 
St.   Joseph   v.   Union   R.   Co.,   494, 

495. 
St.  Joseph  &  St.  L.  R.  Co.   v.  St. 

Louis,  I.  M.  &  S.  R.  Co.,  462. 
St.  Louis  v.  Bissell,  496. 
St.    Louis,   A.    &   T.    H.   R.    Co.    v. 

Belleville,    536,    558. 
St.  Louis  Gas  Light  Co.  v.  Amer- 
ican Fire  Ins.  Co.,  423. 
St.   Louis,    I.    M.    &    S.    R.    Co.    v. 
-Hopkins,    271. 
v.  Neely,  271. 
v.  Petty,  381. 
v.  Ruddell,  125. 
v.  Taylor,  12,  16,  19,  269. 


TABLE  OP  CASES. 


66] 


[REFERENCES  ARE  TO  PAGES.] 


v.  Weakly,  213,  293. 
St.   Louis,    K.    C.   &   N.   R.    Co.   v. 

Cleary,  214. 
St.  Louis  S.  W.  R.  Co.  v.  Vaughan, 

293. 
St.    Louis    Trust   Co.    v.    Rudolph, 

301. 

St.  Louis  &  S.  F.  R.  Co.  v.  Hurst, 
•116. 

v.  Mitchell,  297. 

v.  Weaver,   226,   279,   403,   412. 
St.  Paul  v.  Kuby,  278. 
St.  Paul  Nat.  Bank  v.  Cannon,  493. 
St.  Paul,  S.  &  T.  F.  R.  Co.  v.  St. 

Paul  &  P.  R.  Co.,  541. 
St.  Sure  v.  Lindsfelt,  226,  230. 
Salem  v.  Lane,  462. 
Salle  v.  Light's  Ex'rs,  496,  497. 
Saloman  v.  State,  405. 
Saltar  v.  Applegate,  81,  416. 
Saltern  v.  Melhuish,  165. 
Salyer  v.  State,  503. 
Sammis  v.   Wightman,  415,  457. 
Sampson  v.  Fox,  304. 
Sam  Sloan,  The,  158. 
Samson   v.   Thornton,   122,  125. 
San  Antonio  v.  Jones,  110. 
San  Antonio  &  A.  Pass.  R.  Co.  v. 

Bennett,  279,  281. 
Sanders  v.  Reister,  277. 

v.  Simcich,   264. 
Sanderson  v.  Frazier,  298. 
Sands  v.  Davis,  533. 

v.  St.  John,  464. 

Sandwich  Mfg.  Co.  v.  Zelmer,  541. 
Sandys  v.  Hodgson,  557. 
Sanford  v.  Kane,  540. 

v.  Sanford,  107. 

Sail  Francisco  v.   Lawton,   550. 
Sanger  v.  Dun,  211. 
Sanitary  Dist.  v.  Cook,  557. 


San  Joaquin  County  v.  Budd,  393. 
Santissima    Trinidad,    The,    408. 
Sarahass  v.  Armstrong,  436. 
Saratoga    County    Bank    v.    King, 
223. 

v.  Pruyn,  567. 
Sard  v.  Rhodes,  316. 
Sargent  v.  Lawrence,   425. 

v.  Webster,  113. 

Sasscer  v.  Farmers'  Bank,  404,  424. 
Sasser  v.  State,  109. 
Sater  v.  State,  160,  167. 
Satterthwalte   v.    Powell,    264. 
Saukville  v.  State,  382. 
Saul  v.  Freeman,  497. 
Saunders  v.  Bates,  341. 

v.  McCarthy,  469. 

v.  Saunders,  59. 
Saunderson  v.  Judge,  84. 
Savage  v.  O'Neil,  226,  227,  228,  230. 
Savannah  v.  Mulligan,  89. 
Savannah,  F.  &  W.  R.  Co.  v.  Gei- 
ger,  273. 

v.  Gray,  159,  164,  165,  166,  273. 

v.  Harris,  288,  293,  294. 
Savery  v.  Browning,  118. 
Savings  Bank  v.  Caperton,   26,7. 
Sawyer  v.  Woodbury,  512,  513. 
Saxon  v.  Whitaker's  Ex'r,  333,  335, 

336. 

Sayer  v.  Waystaff,  316. 
Sayles  v.  Christie,  179,  222. 

v.  Smith,  550. 
Sayre  v.  Wheeler,  231,  234. 
Scales  v.  Key,  153. 
Scammon  v.  Scammon,  148,  152. 
Scarf  v.   Jardine,   560. 
Schaedal  v.  Reibolt,  303. 
Schaefer  v.   Saint  Louis  &   S.   R. 

Co.,  11,  16,  17. 

Schaller  v.   Chicago   ft   N.   W.   R. 
Co.,  116,  214,  293. 


662 


TABLE  OF  CASES. 


[REFERENCES  ABE  TO  PAGES.] 


Schaub  v.   Griffin,   252,   259,  263. 
Schauber  v.  Jackson,  349. 
Scheffler  v.   Minneapolis   &   St.   L. 

R.  Co.,  432,  444. 
Schilling  v.  Ter.,  382. 
Schlencker  v.  State,  200. 
Schley  v.  Collis,  339: 
Schlicht  v.  State,  375,  435. 
Schlichter  v.   Keiter,   344. 
Schmick  v.  Noel,  25,  176. 
Schmidt  v.  Blood,  284. 

v.  Milwaukee  &  St.  P.  R.  Co., 
141. 

v.  New  York  Union  Mut.  F. 
Ins.  Co.,  25,  27,  448,  449, 
450,  451. 

Schmisseur  v.   Beatrie,   151. 
Schmit  v.  Day,  149. 
Schneir  v.  Chicago,  R.  I.  &  P.  R. 

Co.,  273. 

Scholfield  v.  Londesborough,  560. 
Schollenberger     v.     Pennsylvania, 

420. 

School   Committee   v.   Kesler,   212. 
School  Dist.  v.  Bragdon,  141. 

v.  Insurance  Co.,  446. 

v.  Reeve,  341. 

v.  Stone,  524,  527. 
Schotes  v.   Hilton,   232. 
Schott  v.  People,  96. 
Schreger  v.  Garden,  471. 
Schreyer  v.  Scott,  174. 

v.  Turner  Flouring  Mills   Co., 

170. 

Schrimpf  v.  Settegast,  303. 
Schroeder  v.  Webster,  131. 
Schuermann  v.  Dwelling-House  Ins. 

Co.,  8. 

Schulenberg  v.  Harriman,  339,  343. 
Schuler  v.  Israel,  391. 
Schultz  v.  Howard,  226,  413. 

v.  Pacific  Ins.  Co.,  25. 


v.  Schultz,   102,   493. 

v.  Ter.,    203. 

Schum  v.  Pennsylvania  R.  Co.,  281. 
Schutz  v.  Jordan,  86. 
Schuyler  County  Sup'rs  v.  People, 

94. 

Schuylkill  Co.  v.   Copley,  211. 
Schwallback  v.  Chicago,  M.  &  St. 

P.  R.  Co.,  533. 
Schwartz  v.  Schwartz,  177. 
Schweinfurth  v.  Dover,  339. 
Schwerdtle  v.  Placer  County,  385, 

398. 

Scobey  v.  Walker,  119. 
Scoffins   v.   Grandstaff,   517,   533. 
Scollans  v.  Rollins,  559. 
Scotia,  The,  403,  404,  418. 
Scotland,  The,  414. 
Scott  v.  Coleman,  104. 

v.  Harris,  301. 

v.  Hillenberg,    27,    245,    251. 

v.  Home  Ins.  Co.,  27. 

v.  Hull,  19. 

v.  Hyde,  194. 

v.  Jackson,  388. 

v.  London  Dock  Co.,  271. 

v.  Scott,   392. 

v.  Wood,  4,  16,  17,  30,  31,  146. 

v.  Wilmington    &    R.    R.    Co., 

273. 
Scottish  N.  E.  R.   Co.  v.  Stewart, 

113. 

Scovill  v.  Baldwin,  164. 
Scroggin  v.  McClelland,  231,  413. 
Scruggs  v.  Bibb,  321. 
Seabury  v.  Stewart,  530. 
Seals  v.  Robinson,  174. 
Seaman  v.  Koehler,  339. 
Searles  v.  Manhattan  R.  Co.,  268, 
299. 

v.  Seipp,  561. 
Searls  v.  Knapp,  66,  391,  452. 


TABLE  OF  CASES. 


663 


[REFERENCES  ARE  TO  PAGES.] 


Sears  v.  Hanks,  539. 
v.  Hayt,    361. 
v.  Sears,  91,  106. 
v.  Shafer,  179. 
v.  Terry,  104. 
Seaton  v.  Benedict,  471. 
Seavy  v.  Dearborn,  20,  33. 
Sechrest  v.  Edwards,  184,  215. 
Second    Nat.    Bank   v.    Chancellor, 

411. 

v.  Walbridge,  563. 
Secrist  v.  Petty,  391,  452. 
Seebrock  v.  Fedawa,  20,  184,  332, 

334. 

Seechrist  v.  Baskin,  108. 
Seeger  v.  Mueller,  526,  555. 
Seidensparger  v.  Spear,  364. 
Seller  v.  People,  187,  188,  189. 
Selleck  v.  Janesville,  501. 
Sellers  v.  Commercial  F.  Ins.  Co., 

83. 

Sellick  v.  Starr,  347. 
Sellman  v.  Bowen,  236,  244,  245. 
Selma,  R.  &  D.  R.  Co.  v.  United 

States,  42. 

Selma  &  T.  R.  Co.  v.  Tipton,  111. 
Selwyn,  In  re,  263. 
Semon  v.  People,  26. 
Semple  v.  Glenn,  305,  307,  313,  315, 

487,  488,  497. 

v.  Hagar,  395. 

Seneca  County  v.  Allen,  552. 
Sensenderfer  v.  Pacific  M.  L.  Ins. 

Co.,  257. 

Senser  v.  Bower,  237,  242. 
Settlemier  v.  Sullivan,  106. 
Sever  v.  Lyons,  383. 
Severs  v.  Dodson,  174. 
Seward  v.  Didier,  95. 

v.  Garlin,  161. 
Sewell  v.  Evans,  194,  195. 


Seybolt  v.  New  York,  L.  E.  &  W. 

R.  Co.,  25,  297. 
Seymore  v.  Lake,  278. 
Seymour  v.  Creswell,  345,  346. 

v.  Spring  Forest   Gem.   Ass'n, 

172. 

Shackelford  v.  Purket,  486. 
Shaefer  v.  Gates,  105. 
Shafer  v.  Lacock,  269. 
Shahan  v.  Alabama  G.  S.  R.  Co., 

354,  359. 
Shakman  v.  United   States  Credit 

System  Co.,  565. 
Shall  v.  Biscoe,  507,  511. 
Shallcross  v.  Palmer,  134. 
Shanfelter  v.  Baltimore,  402. 
Shannon  v.  Frost,  112. 

v.  Taylor,  502. 

v.  White,  40. 
Sharon  v.  Hill,  489. 
Sharp  v.  Johnson,  89,  257. 

v.  State,    44. 
Sharpe  v.  Freeman,  502. 

v.  Orne,   135. 
Shattuck  v.  People,  431. 

v.  Rogers,   29. 
Shaw  v.  Berry,  286. 

v.  Coffin,   141. 

v.  Galbraith,  537. 

v.  Gardner,  290. 

v.  Jacobs,  126. 

v.  Port  Philip  &  C.  G.  Min.  Co., 
563. 

v.  State,  400,  406,  435. 
Shawhan  v.  Long,  537. 
Shawyer  v.  Chamberlain,  429. 
Shay  v.  McNamara,  500. 
Shea's  Appeal,  180. 
Shearer  v.  State,  44. 
Shed  v.  Augustine,  412. 
Sheehan  v.  Kearney,  183,  184,  332. 


664 


TABLE  OF  CASES. 


[REFERENCES  AKE  TO  PAGES.] 


Sheehy  v.  Blake,  463. 
Sheen  v.  Stothart,  526. 
Sheets  v.  Bray,  335. 
Sheffer  v.  Willoughby,  269. 
Sheffey's  Ex'r  v.   Gardiner,  525. 
Sheffield  Land,  I.  &  C.  Co.  v.  Neill, 

121. 
Shelburne     Falls     Nat.     Bank     v. 

Townsley,  86. 
Shelbyville  Trustees  v.  Shelbyville 

&  E.  Turnpike  Co.,  80. 
Shelbyville   Water    Co.    v.    People, 

90. 
Sheldon  v.  Clark,  44. 

v.  Ferris,  260. 
Shell's  Estate,  In  re,  9. 
Shelton  v.  Alcox,  544. 
Shenandoah.  Nat.  Bank  v.  Marsh, 

126. 
Shenandoah  V.   R.   Co.   v.   Ashby's 

Trustee,  101. 

Shenk  v.  Philadelphia  Steam  Pro- 
peller Co.,  289. 
Shepard   v.   Missouri   Pac.  R.   Co., 

157. 

Shepardson  v.  Perkins,  12,  13,  18. 
Shepherd  v.  Busch,  320.f 

v.  Currie,  322. 
Shepperd  v.  State,  268. 
Sheppherd  v.  Young,  303. 
Sheridan  v.  Andrews,  SOx. 
Sheriff  v.  Missouri  Pac.  R.  Co.,  488. 
Sherman  v.  Champlain  Transp.  Co., 
552. 

v.  Dilley,  489,  511,  512. 
v.  Kane,  518. 

v.  Menominee  R.  L.  Co.,  451. 
Sherwood  v.  Alvis,  547. 
v.  Baker,  102,  108. 
Shevlin  v.  Whelen,  537. 
Shew  v.  Call,  551. 


Shields  v.  Bush,  120,  122. 

v.  Clifton  Hill  Land  Co.,  175. 
v.  Pringle,  312,  314,  315. 
Shilcock  v.  Passman,  33. 
Shipmari  v.  Furniss,  179,  180,  181. 
Shirk  v.  Neible,  182. 
Shirts  v.  Overjohn,  212. 
Shivers  v.   Simmons,   556. 

v.  Wilson,  101,  103. 
Shmit  v.  Day,  43. 
Shober  v.  Robinson,  496. 
Shoemaker  v.  Mechanics'  Bank,  84. 
Shoptaw  v.  Ridgway's  Adm'r,  122. 
Shore  v.  Wilson,  430,  455. 
Shorey  v.  Hussey,  93. 
Shorman  v.  Eakin,  537,  544. 
Short  v.  State,  369. 

v.  Taylor,  506,  512. 
Shortwell  v.  Murray,  216. 

v.  Harrison,  416. 
Shoufe  v.  Griffiths,  557,  567. 
Shown  v.  McMackin,  150,  260,  300. 
Shriver  v.  Sioux  City  &  St.  P.  R. 

Co.,   291,  294. 

Shroeder  v.  Webster,  136,  137. 
Shropshire  v.  Long,  322. 
Shubrick  v.  Adams,  312,  313. 
Shuman  v.  Hurd,  248. 

v.  Shuman,  246,  249. 
Shumway  v.  Reed,  317. 

v.  Stillman,    104. 
Sibbet  v.  Ainsley,  250. 
Siberry  v.  State,  474. 
Sibley  v.  Aldrich,  286. 

v.  Lay,  39. 

Sichel  v.  Lambert,  115. 
Sichler  v.  Look,  99,  106. 
Siegbert  v.  Stiles,  382,  428. 
Siegel  v.  Robinson,  413. 
Sikes  v.  Johnson,  141. 
Sillick  v.  Booth,  260. 


TABLE  OF  CASES. 


Go5 


[REFERENCES  ARE  TO  PAGES.] 


Silverthorn's  Will,  332,  334. 

Silvus  v.  State,  201. 

Simm  v.  Anglo-American  Tel.  Co., 

566. 
Simmons  v.  Atkinson,  561. 

v.  Rudall,  134. 

v.  Shelton,  173,  478. 

v.  Simmons,  143. 

v.  Trumbo,  406,  426. 
Simmons  Hardw.  Co.  v.  Greenwood 

Bank,  553. 
Simms  v.  Southern  Exp.  Co.,  227, 

410,  412. 

Simon  v.  Stearns,  520. 
Simonton  v.  Winter,  304. 
Simpkins  v.  Windsor,  132. 
Simpson  v.  Davis,  17. 

v.  Pearson,  561. 

v.  Stackhouse,  135. 

v.  State,  64. 
Sims  v.  Ferrill,  221. 

v.  Marryat,  389,  403. 

v.  Sims,   107. 
Sinclair  v.  Baggaley,  118. 

v.  Jackson,  25,  27. 

v.  Murphy,  552. 
Singer  v.  Hutchinspn,  497. 

v.  Salt  Lake  Copper  Mfg.  Co., 

113. 

Singer  Mfg.  Co.  v.  Elizabeth,  537. 
Sinnott  v.  Colombet,  430. 
Sintzenick  v.  Lucas,  512. 
Sirrine  v.  Briggs,  132,  135. 
SIsco  v.  Cheeney,  190. 
Sisk  v.  Woodruff,  497. 
Siasons  v.  Dixon,  233. 
Sitler  v.  Gehr,  194,  195. 
Skiff  v.  Stoddard,  342. 
Skilbeck  v.  Garbett,  86. 
Skinner  v.  Brown,  90. 

v.  London  B.  &  S.  C.   R.  Co., 
296. 


Skipp  v.  Hooke,  393. 
Skyring  v.  Greenwood,  553. 
Slagle  v.  Entrekin,  503. 
Slater  v.   Moore,  134. 

v.  Skirving,  512,  513. 
Slaughter  v.  Barnes,  386. 
Sleeper  v.  Van  Middlesworth,  152. 
Slicer  v.  Pittsburg  Bank,  107. 
Sloan  v.  Gilbert,  25. 

v.  Price,  509. 

Sloane  v.  Southern  Cal.  R.  Co.,  434. 
Slocovich  v.  Orient  M.  Ins.  Co.,  404. 
Slocum  v.  People,  74. 

v.  Riley,  40. 
Sly  v.  Hunt,  511. 
Small  v.  Attwood,  567. 

v.  Chicago,  R.  I.  &  P.  R.  Co., 
275. 

v.  Haskins,  489,  504. 

v.  Small,  185. 
Smiley  v.  Fries,  122,  518. 
Smith  v.  Aetna  L.  Ins.  Co.,  266. 

v.  American  Exp.  Co.,  213,  292. 

v.  Babcock,  550. 

v.  Bettger,  317,  320. 

v.  Bissell,   321. 

v.  Burrus,  12,  26. 

v.  Cannell,  521. 

v.  Clausmeier,  102. 

v.  Clayton,  430. 

v.  Combs,  253. 

v.  Croom,  263,  265. 

v.  Crosby,  94. 

v.  Davies,  33. 

v.  De  Russy,  519. 

v.  Eals,  131. 

v.  Eastern   R.,   273. 

v.  Fowler,  474. 

v.  Frankfleld,  489. 

v.  Fuge,   194. 

v.  Gardner,  322. 

v..  Gillum.  16,  194. 


666 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  PAGES.] 


v.  Green,  384. 

v.  Harkins,  354. 

v.  Henline,  185. 

v.  Ingram,  538,  541. 

v.  Janesville,  381. 

v.  Jensen,   173. 

v.  Kay,   178. 

v.  Knowlton,    252,    257,    260. 

v.  Loafman,  180,  550. 

v.  Maya,  222. 

v.  Meyers,  188. 

v.  Muncie  Nat.  Bank,  229. 

v.  Mundy,   555. 

v.  Nevlin,   126. 

v.  New  York  Cent.  R.  Co.,  294. 

v.  Niagara  P.   Ins.   Co.,  308. 

v.  Ogilvie,  172. 

v.  Oglesby,  540. 

v.  Parker,  131. 

v.  Pedigo,   436. 

v.  Pelott,  468. 

v.  Penn,  220. 

v.  Penny,   530,   537. 

v.  People,  370. 

v.  Porter,  118,  119. 

v.  Putnam,  354,  355. 

v.  Sac  County,  16,  128. 

v.  St.  Lawrence,  322. 

v.  St.  Paul  City  R.  Co.,  296. 

v.  Shakopee,  402. 

v.  Sherwood,  512. 

v.  Smith,  26,  150,  151,  255,  261, 

322,  323,  336,  506. 
v.  Smith's   Ex'rs,   253. 
v.  Spraeue,   563. 
v.  State,  199,  367,  368. 
v.  Strahan,  301,  302. 
v.  Strong,   400. 
V.  Sutton,  550. 
v.  Tebbitt,  336. 
v.  Townshend,    181. 
v.  United  States,  135. 


v.  Village  of  Adrian,  44. 

v.  Whitaker,   229. 

v.  Williams,  519. 

v.  Wilson,   286. 

v.  Yule,   172. 

v.  Zent,  32. 
Smith's  Appeal,  304. 
Smith's  Ex'r  v.  Benton,  305. 
Smitha  v.   Flournoy's  Adm'r,   381, 

382,  407,  422,  437. 
Smithpeter  v.   Ison's  Adm'rs,   307, 

309. 

Smiths  v.  Shoemaker,  86. 
Smoot  v.   Judd,  511. 
Smyrl  v.  Niolon,  289. 
Smyth  v.  Jefferies,  45. 
Sneed  v.  Ewing,  225,  239,  242,  244, 

245. 
Snell  v.  Bray,  160. 

v.  Faussatt,  105. 

v.  Insurance  Co.,  562. 
Snider  v.  State,  434. 
Snider   Sons'  Co.  v.  Troy,  546. 
Snow  v.  Benton,  337. 
Snyder  v.  Wheeling  Elec.  Co.,  270, 

277. 

Soaps  v.  Eichberg,  467. 
Society  v.  Young,  111. 
Sohier  v.  Norwich  F.  Ins.  Co.,  35. 
Solomon   v.   Dreschler,   45. 

v.  Hughes,  457. 
Solyer  v.  Romanet,  381,  382. 
Somerset  County  Mut.  F.  Ins.  Co. 

v.  Usaw,  27,  28. 

Somervail  v.  Gillies,  324,  325,  342. 
Sonneberg  v.  Steinbach,  499. 
Sons  of  Temperance  v.  Brown,  110. 
Soper  v.  Peck,  211. 
Souter  v.  Baymore,  489. 
South   Eastern   R.   Co.   v.  Warton, 
527,  528. 


TABLE  OF  CASES. 


667 


[BEFEBENCES  ABE  TO  PAGES.] 


Southern   Exp.   Co.   v.    Moon,   290. 

v.  Newby,  289. 
Southern   Mut.   Ins.    Co.   v.   Yates, 

212. 
Southern    Pac.   Co.   v.   Tomlinson, 

278. 

Southern  R.   Co.   v.  Covenia,   433, 
441,  447,  465. 
v.  Hagan,  439. 
v.  Hubbard,  473. 

South  Nashville  St.  R.  Co.  v.  Mor- 
row, 90. 
Southwestern  R.  Co.  v.  Singleton, 

273,  296. 

Southworth  v.  Hoag,  33. 
South  &  N.  A.  R.  Co.  v.  Pilgreen, 
437. 

v.  Wood,  288,  398. 
Soward  v.  Leggatt,  31. 
Soyer  v.  Great  Falls  Water  Co., 

236,   238. 
Sparks  v.  Dawson,  25. 

v.  Sparks,  36. 

Sparrow  v.  Kingman,  529,  533,  535. 
Sparta  v.  Lewis,  26. 
Spaulding  v.  Chamberlin,  478. 
v.  Chicago  &  N.   W.  Ry.  Co., 

275,  416. 

v.  Crawford,   177. 
v.  Hood,  16,  17. 
v.  Vincent,  81. 
Spear  v.  Carter,  103. 

v.  Philadelphia,    W.    &    B.    R. 

Co.,  296. 

Spears,  Ex  parte,  415. 
Spears  v.  Burton,  257. 
Spees  v.  Boggs,  268. 
Spellman  v.  Lincoln  R.  T.  Co.,  297. 
Spence  v.  Ham,  36. 
Spencer  v.  Dearth,  494,  505. 
v.  Pollock,  241. 
v.  Roper,  260. 


Spencer  &  Newbold's  Appeal,  181. 
Spengler  v.  Williams,  433. 
Sperry   v.   Spaulding,   126,   128. 

v.  Wilcox,   4,   39. 
Spies  v.  People,  199,  200. 
Spillman  v.  Williams,  lol,  105. 
Spinning  v.  Drake,  550. 
Spofford  v.  Hobbs,  525. 
Sprague  v.  Cutler  &  S.  L.  Co.,  232. 
v.  Dodge,  25.  28. 
v.  Litherberry,  99,  106. 
v.  New  York  &  N.  E.  R.  Co., 

466. 

Spraights  v.  Hawley,  343. 
Sprigg  v.  Moale,  8,  259,  300. 
Springer  v.  Ford,  298. 

v.  Shavender,  487,  491. 
Springfield  v.  Worcester,  398. 
Springfield  Consol.  R.  Co.  v.  Hoeff- 

ner,  451. 

Springfield  Inst.  v.  Copeland,  340. 
Spring    Garden    Mut.    Ins.    Co.    v. 

Evans,  159,  162,  170. 
Springs  v.  Schenck,  551. 
Sprowl  v.   Lawrence,  424. 
Spruil  v.  Cooper,  25,  26. 
Spur  v.   Trimble,   254. 
Squier   v.   Stockton,   93,   341. 
Squire  v.  State,  243,  257. 
Stack  v.  New  York,  N.  H.  &  H.  R. 

Co.,  157. 

Stadhard  v.  Lee,  235. 
Stafford  v.  Morning  Journal  Ass'n, 

166. 

v.  Newson,   207. 
Stahl  v.  Mitchell,  100. 
Stallcup   v.   Tacoma,   497. 
Stamford  v.  Dunbar,  349,  355. 
Stanard   Mill    Co.   T.    White   Line 

C.  T.  Co.,  292. 
Standage  v.  Crelghton,  470. 


668 


TABLE  OF  CASES. 


[REFERENCES  ABE  TO  PAGES.] 


Standard    L.    &    A.     Ins.    Co.    v. 

Thornton,   266. 
Stanley  v.  Dunn,  177. 

v.  McElrath,  391,  455. 
Stanley's  Adm'r  v.  Bank  of  N.  A., 

102. 

Stans  v.   Baitey,  239. 
Stansbury    v.    Stansbury's    Adm'r, 

40. 
Staples  v.  Fillmore,  550. 

v.  Schmid,  233. 

V.  Smith,  344. 

v.  Wellington,  337. 
Stapleton  v.  Dee,  508. 

v.  Nowell,  471. 
Starace  v.  Rossi,  435. 
Starr  v.  Bennett,  221. 

v.  Newman,  567. 

Starratt  v.  Mullen;  17,  33,  36,  143. 
State  v.  Aaron.   138,   139. 

v.  Adams,    138',    368,    370,   492. 

v.  Alexander,   22. 

v.  Aloe,   468. 

v.  Ardoin,  203. 

v.  Arnold,  43,  140. 

v.  Atkinson,   24. 

v.  Babb,    369. 

v.  Bach,  44. 

v.  Baker,  188. 

v.  Baldoscr,  166. 

v.  Baldwin,  430. 

v.  Barnes,    1*8. 

v.  Barringer,  202. 

v.  Barron,    160. 

v.'  Bartlett,   23,   326,   328. 

v.  Bates,   391,   396. 

v.  Benton,  200. 

v.  Bertrand,    200,    201,    202. 

v.  Beswick,   435. 

v.  Bishop,    368. 

v.  Bowen,   390. 

v.  Boyd,  420,  425, 


v.  Boyle,  188,  189. 

v.  Brady,  208. 

v.  Branch,  491,  498,  499,  504. 

v.  Braskamp,  407. 

v.  Brewer,  541. 

v.  Brewster,   197. 

v.  Britton,  244. 

v.  Brown,  155,  200. 

v.  Bruce,  22,  327. 

v.  Bunker,  26. 

v.  Bush,  2J 

v.  Butts,  216. 

v.  Byrd,  202. 

v.  Carr,   166. 

v.  Chamberlain,   158. 

v.  Chapman,  45. 

v.  Chatham    Nat.   Bank,    460. 

v.  Chee  Gong,  156,  203. 

v.  Chick,  134. 

v.  Chingren,    405,    452. 

v.  Church,  435. 

v.  Clay,  228,  229. 

v.  Cleaves,  167,  187,  188. 

v.  Cleveland,  381. 

v.  Clifford,  23. 

v.  Clyne,   208. 

v.  Cobb,  226. 

v.  Cole,  394,  395. 

v.  Collins,  188. 

v^  Connoway,  303. 

v.  Cooper,  399. 

v.  Cousins,   164. 

v.  Crane,   24. 

v.  Crawford,  23,  198,  326,  328. 

v.  Crowell,   44. 

v.  Cunningham,   207,   381,   382, 

385,  407. 
v.  Cutting,  44. 
v.  Dahl,  386. 
v.  Dale,   67,   369. 
v.  Daugherty,  391. 
v.  De  Ranee,  22,  828. 


TABLE  OP  CASES. 


669 


[BEFEKENCES  ABE  TO  PAGES.] 


v.  Deschamps,   200. 

v.  Dickson,  171. 

v.  Dlerberger,  202. 

v.  Dockstader,  162. 

v.  Donahoe,   204. 

v.  Downs,  408,   452. 

v.  Duncan,  368. 

v.  Dunwell,   381. 

v.  East  Fifth  St.  R.  Co.,  554. 

v.  Edgerton  School  Board,  431, 

436,  465. 

v.  Edwards,  44,  232,  391,  447. 
v.  Ellington,    94. 
v.  Emery,  44. 
v.  Evans,  45. 
v.  Fertlg,  188,  189. 
v.  Findley,  81. 
v.  Fitzgerald,  164. 
v.  Foster,  44,  232. 
v.  Foulk,  371 
v.  Fowler,  138. 
v.  Fox,    10     434. 
v.  Frank,    389. 
v.  Frederick.  420. 
v.  Gaymon,  449. 
v.  Gillesple,  370. 
v.  Gilllck,  199,  200. 
v.  Glave,  167. 
v.  Glelm,  24. 
v.  Gllsson,  89. 
v.  Goln,'  138,  140. 
v.  Goodenow,  217. 
v.  Goodrich,  258. 
v.  Goyette,  435. 
v.  Graham,  478. 
v.  Grltzner,  88. 
v.  Guild,   369. 
v.  Halnes,  188. 
v.  Hammett,  390. 
v.  Handy,  139,   140. 
v.  Hansen,  21,  327. 
v.  Hardln,   203. 


v.  Harris,  82. 

v.  Harrison,  370. 

v.  Hartley,  22,  327. 

v.  Harvey,  203. 

v.  Haskell,  109. 

v.  Hatcher,  166. 

v.  Hayden,  24.- 

v.  Hayes,  423. 

v.  Hayward,  336,  338. 

v.  Henke,  255. 

v.  Herman,  245,  246,  247. 

v.  Hessenkamp,   199. 

v.  Hlckman,  199,  201. 

v.  Hlldreth,  200,  201. 

v.  Hill,    ls»<. 

v.  Hilton,  244. 

v.  HInchman,  108. 

v.  Hirsch,  32,  408. 

v.  Hocker,   389. 

v.  Hodge,  367. 

v.  Hodges,  370. 

v.  Hodgskins,  243,  244. 

v.  Hoffman,  368. 

v.  Hogan,  161,  164. 

v.  Hogard,  368. 

v.  Holmes,  167. 

v.  Holt,   503. 

v.  Housekeeper,   38,   268. 

v.  Howard,  338. 

v.  Howell,   203. 

v.  Hoxsie,   21. 

v.  Hoyt,  12,  328. 

v.  Hudson    County    Elec.    Co., 

391. 

v.  Hughes,    217,    244. 
v.  Hull,    167,    504. 
v.  Hunton,  82. 
v.  Hutchinson,  435. 
v.  Indiana  &  I.  S.  R.  Co.,  437. 
v.  Ingram,  198. 
v.  Intoxicating    Liquors,     878, 

452. 


670 


TABLE  OP  CASES. 


[REFERENCES  ARE  TO  PAGES.] 


v.  Jackson,  204,  385,  391,  399, 

v.  Jackson  County  Court,  407. 

v.  Jacob,  451. 

v.  Jarrett,  441. 

v.  Jennings,  369. 

v.  Johnson,   23,   152,   166,   244, 

326,  355,  371,   372,  431. 
v.  Jones,  22.  23,  139,  197,  200, 

326,  327,  360. 
v.  Josey,  203. 
v.  Justus,  91. 
v.  Kelly,  188,  368. 
v.  Kelsoe,  194,  196. 
v.  Kempf,  67. 
v.  Kessler,  66. 
v.  Kimbrough,  217. 
v.  Kirkpatrick,  370. 
v.  Kluseman,  140. 
v.  Knight,    200,    201. 
v.  Kupferle,  82,  111,  112. 
v.  La  Grange,  369,  370. 
v.  Lawrence,  22,  167,  327. 
v.  Learnard.  138,  140. 
v.  Lee,  12,  16,  198. 
v.  Leiber,  403. 
v.  Levelle,  199,  200,  201. 
v.  Lewis,  22,  327. 
v.  Lincoln  Gas  Co.,  447. 
v.  Lingle,  432. 
v.  Lobb's  Adm'r,  308. 
v.  Looke.  412. 
v.  McAllister,  400. 
v.  McCluer,  204. 
v.  McCoy,  22,  328. 
v.  McDaniel,  74. 
v.  McDonald,  493,  497,  504. 
v.  McDonnell,  200. 
v.  McDowell,  247,  248. 
v.  McGlothlen,  26. 
v.  McGuire,  194,  196. 
v.  McKinney,   218. 


v.  McRae,  367. 

v.  Ma  Foo,  187,  188. 

v.  Main,  81,  434,  447,  452,  455. 

v.  Maine    Cent.    R.    Co.,    280, 

281,  422,  433,  449,  450. 
v.  Manley,  370,  386. 
v.  Marion  County  Court,  407. 
v.  Marler,  21. 
v.  Marsh,  392,  453. 
v.  Mason,  199,  208. 
v.  Means,  453. 
v.  Meek,  492,  512. 
v.  Megaarden,  386. 
v.  Milholland,  138. 
v.  Miller,  189,  371. 
v.  Minnick,  408. 
v.  Mitchell,  200. 
v.  Moffit,   431. 
v.  Moore,     66,    194,    196,    201, 

260,  368,  369,  425. 
v.  Morris,    378,   424,   446. 
v.  Mrozinski,  433. 
v.  Murfreesboro,    399. 
v.  Murphy,  440,   555. 
v.  Neal,  204. 
v.  Nelson,  186,  375,  439. 
v.  Nichclls,  47. 
v.  Nichols,  26. 
v.  Nickleson,  138. 
v.  Nixon,  326. 
v.  Norton,  82,  83,  96. 
v.  Norwood,  329. 
v.  Nye,  44. 
v.  Ober,    167,    555. 
v.  O'Conner,  398. 
v.  O'Keefe,  454. 
v.  O'Neal,  163. 
v.  Owsley,  368,  369,  372. 
v.  Paesons,  44. 
v.  Parkerson,  187. 
v.  Patterson,  201,  205. 
v.  Paulk,  22,  327. 


TABLE  OF  CASES. 
[REFERENCES  ARE  TO  PAGES.] 


671 


v.  Paup,  221. 

v.  Pennington,  381,  383,  385. 

v.  Perry,   449. 

v.  Pettaway,   248.. 

v.  Pike,  66,  67,  328. 

v.  Platt,    51. 

v.  Plym,   252,   258. 

v.  Polk    County    Com'rs,    375, 

427. 

v.  Pomeroy,  367,  372. 
v.  Postlewait,  395. 
v.  Potter,  187,  188. 
v.  Potts.  200.  329. 
v.  Powell,  367,  369,  370. 
v.  Powers,  382. 
v.  Pratt,  21,  327. 
v.  Prince,  93. 
v.  Pugh,  138,  139. 
v.  Rainey,  497. 
v.  Ray,  382,  390,  393. 
v.  Raymond,  367,  372. 
v.  Reader,    382. 
v.  Reddick,  338. 
v.  Redemeier,  22,  328. 
v.  Reed,  159,  204. 
v.  Reinhart.    158. 
v.  Richart,  53,  54,  367. 
v.  Richeson,  44. 
v.  Rights,  367,  371. 
v.  Rivers,  370. 
v.  Roberts,  81. 
T.  Rodman,    161.    • 
v.  Ro&ers,  26. 
v.  Romaine,   27,   246,   250. 
v.  Roswell,  244. 
v.  Sam,  139,  140. 
v.  Schaefer,  22.  326,  336. 
v.  Schoonover,  420. 
v.  Schweitzer,    203,    204,    232, 

236.    237.    243. 
•v.  Scott,  22,  327,  370,  371.  372, 

452. 


v.  Shaffer,  370. 

v.  Shattuck,  225,  228,  229. 

v.  Shea,    204. 

v.  Shee,  187,  189. 

v.  Shelton,  44. 

v.  Shoemaker,  246,  247. 

v.  Shumpert,    248. 

v.  Simons,   158. 

v.  Simpson,  382. 

v.  Sioux  Falls  Brew.  Co.,  435. 

v  Smith,  47,  199,  201. 

v.  Snell,  370. 

v.  Snow,  381. 

v.  South      Kingstown      Town 

Council,   436. 
v.  Spaulding,  545. 
v.  Spencer,  21,  336. 
v.  Staples,  160. 
v.  Stone,  545. 
v.  Superior  Ct.,  106. 
v.  Sutton,  204. 
v.  Swan,   94. 
v.  Taylor,  368,  555. 
v.  Tenant,  434. 
v.  Thornton,  204. 
v.  Tiedermann,  498. 
v.  Tisdale,  434. 
v.  Todd,  390,  424. 
v.  Toland,  390. 
v.  Toney,  139. 
v.  Tootle,  382. 
v.  Trivas,  200. 
v.  Trout,   22. 
v.  Tucker,   370. 
v.  Upham,  162. 
v.  Van  Pelt,  218. 
v.  Vittum,  196. 
v.  Voorhies,  492. 
v.  Wagner,  381,  444,  447. 
v.  Wait,  21. 
v.  Walsh,  96,  97. 
v.  Walters.   367. 


672 


TABLE  OP  CASES. 


[REFERENCES  ARE  TO  PAGES.] 


v.  Ward,  156,  204. 

v.  Warford,  369,  371,  372. 

v.  Wayne  County  Ct,  93. 

v.  Wells,   74. 

v.  Wenzel,  93. 

v.  West,   21,   327. 

v.  Weston,  368. 

v.  Whaley,   241. 

v.  Whitmer,   368. 

v.  Whitson,   200,   201,   202. 

v.  Wilbourne,  43,  196. 

v.  Williams,   82,    90,   156,    160, 
187,    386,    489,    490,    507. 

v.  Wilner,  336,  338. 

v.  Wilson,  44. 

v.  Wingo,  198,  202,  204. 

v.  Woodly,  44. 

v.  Woodward,  44. 

v.  Worthingham,  236,  241,  242, 
243. 

v.  Worthingtcm,   238. 

v.  Wright,  315. 

v.  Yeargan.  138. 

v.  Zeno,  434. 
State  Bank  v.  Curran,  386. 

v.  Seawell,  152. 
State  Board  v.  Citizens,  St.  R.  Co., 

547. 

State  Nat.  Bank  v.  Flathers,  560. 
States  v.  Philadelphia,  W.  &  B.  R. 

Co.,  272. 

Statham  v.  Ferguson's  Adm'r,  181. 
Staton  v.  Bryant,  563. 
Stayner  v.  Joyce,  19,  132,  133. 
Steadman  v.  Powell,  236. 
Stearns  v.  Hendersass,  518. 

v.  Janes,   366. 

v.  Ontario    Spinning   Co.,    270, 
271,  277. 

v.  Richmond,  462. 

v.  Swift,  540. 
Stebbing  v.    Spicer,   196. 


Stebbins  v.  Duncan,  194. 
Steele  v.  Lineberger,  502. 

v.  Lowry,  121. 

v.  Renn,  493. 

v.  Townsend,   291. 
Steenerson   v.    G"eat   Northern   R. 

Co.,  377,  457. 
Steets    v.    New   York   El.    R.    Co., 

452. 
Stegall    v.    Stegall'e    Adm'r,    246, 

248,  249,  250,  251. 
Stein  v.  Hauck,  365. 

v.  Indianapolis      Bldg.      Loan 
Fund  &  Sav.  Ass'n,  109. 
Steinhart  v.  National  Bank,  318. 
Steinmetz  v.  Versailles  &  O.  Turn- 
pike Co.,  382. 
Stephen  v.  State,  431. 
Stephens  v.  Fox,  478. 

v.  Jack,  478,  497. 
Stephenson  v.  Allison,  391. 

v.  Stephenson,  333. 
Sternback  v.  Friedman,  177. 
Sternberger  v.  McSween,  98. 
Stevens  v.  Carson,  173. 

v.  Dennett,  563. 

v.  Ludlum,   561,  562,  563,   567. 

v.  McNamara,  251,   255. 

v.  Mangum,  103,  108. 

v.  Reed,  236. 

v.  State,   450. 

v.  Taft,   113. 
Stevenson  v.  Marony,  31. 

v.  Martin,  301. 

v.  Saline   County,   558. 
Stevenson's  Heirs  v.  McReary,  95, 

239,  524,  525,  535. 
Stewart  v.  Anderson,   100,   537. 

v.  Cleveland,  C.,  C.  &  St.  L.  R. 
Co.,  214. 

v.  Flint,  338. 

v.  Hall,   208. 


TABLE  OF  CASES. 


673 


[REFERENCES  ABE  TO  PAGES.] 


v.  Matheny,   560. 

v.  Montgomery,  499. 

v.  Nashville,  278,  281. 

v.  Preston,    135,    172. 

v.  Roderick,   551. 

v.  Stewart,  104,  105,  220. 

v.  Stone,   284. 

v.  Wyandotte   County    Com'rs, 

553. 

Stier  v.  Oskaloosa,  399. 
Stiff  v.  Ashton,  563. 
Stiger  v.  Bent,  342. 
Stiles  v.  Stewart,  397. 

v.  Stiles,  180. 
Still  v.  Hutto,  150. 
Stillwell  v.  Fatten,  132,  133. 
Stinchfleld  v.  Emerson,  254,  300. 
Stinde  v.  Goodrich,  264. 

v.  Ridgway,  264. 
Stith  v.  Fullinwider,  19,  39. 
Stitt  v.  State,  202,  205. 
Stittgen  v.  Rundle,  402. 
Stock  v.  Stoltz,  303. 
Stockbridge   v.   "West   Stockbridge, 

83,  109. 

Stockbridge's  Petition,  253. 
Stockbridge    Iron    Co.    v.    Hudson 

Iron  Co.,  24. 

Stocken   v.   Collin,   84,   86. 
Stockman  v.  State,  367,  368. 
Stockton  v.  Williams,  568. 
Stockton's  Adm'r  v.  Johnson,  307. 
Stockton  Combined  H.  &  A.  Works 

v.  Houser,  112. 

Stockton  Sav.  Bank  v.  Staples,  113. 
Stoddard   v.   Burton,   341. 

v.  Sloan,   384,   387,  388. 
Stodrlard  Mfg.  Co.  v.  Mattice,  100. 
Stokes  v.  Fraley,  507. 

v.  Macken,  414,   416,  417. 

v.  Saltonstall,  298. 

v.  State,  367. 


Stonard  v.  Dunkin,  552. 
Stone  v.  Dry  Dock,  E.  B.  &  B.  R. 
Co.,  142. 

v..  Fitts,   534. 

v.  French,  121. 

v.  King,  124 

v.  Sledge,  517,  534,  556. 

v.  Wood,  501. 
Stoops  v.  Woods,  490,  499. 
Storey  v.  Brennan,  7. 
Stormont  v.  Waterloo  L.  &  C.  As- 

sur.  Co.,  19,  266. 
Storrie  v.  Cortes,  401. 
Story  v.  Finnic,  471. 

v.  Salomon,  234. 
Stout    v.    Grant    County    Com'rs, 

397,   426. 

Stoutimore  v.  Clark,  109,  501. 
Stouvenel  v.  Stephens,  255,  256. 
Stovall  v.  Banks,  503. 

v.  State,  26. 

Stover  v.  Boswell's  Heir,  236,  244, 
245. 

v.  Duren,   50,   310,  311,   316. 

v.  Mitchell,  220. 

v.  People,    53,    54,    167,    367. 
Stow  v.  Wyse,  523,  530,  534. 
Stowell  v.  Fowler,  39. 
Straker  v.  Phenix  Ins.  Co.,  212. 
Strand  v.  Griffith,  566. 
Strawbrldge  v.  Bradford,  142. 
Strayer  v.  Johnson,  501. 
Street  v.  Augusta  I.  &  B.  Co.,  492. 

v.  Goss,  181. 

v.  Johnson,  208. 

v.  State,  197. 
Strickler  v.  Todd,  354. 
Strimpfler  v.  Roberts,  306. 
Strode  v.  Clement,  208. 

v.  Magowan's   Heirs,   246,   249. 

v.  Seaton,  517. 
Strohn  v.  Detroit  &  M.  R.  Co.,  214. 


674 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  PAGES.] 


Strong  v.  King,  318. 

v.  Strong,  108. 

v.  Waddell,   550. 
Strother   v.   Lucas,    412. 
Strough  v.  Wilder,  120. 
Stroughill  v.  Buck,  524. 
Strouse  v.  Drennan,  104. 

v.  Leipf,    189,    191. 
Stuart  v.  People,   370. 
Stubbs  v.  State.  386,  393. 
Studebaker  Bros.   Mfg.  Co.  v.  En- 

dom,  37. 

Stumpf  v.  Stumpf,  221. 
Stumph  v.  Millpr,  335. 
Sturdevant's  Appeal,  47,  67,  333, 

452. 
Sturges  v.  Beach,  502. 

v.  Circleville  Bank,  441. 
Sturm   v.  Boker,  131. 
Sturtevant  v.  Starin,  192. 
Stuyvesant  v.  Woodruff,  362. 
Suburban  Elec.  Co.  v.  Nugent,  270, 

277. 
Sullivan  v.  Colbv,  563. 

v.  Eddy,   121. 

v.  Goldman,   148. 

v.  Granz,  159. 

v.  Hense,  405. 

v.  Hugly,  249,  250. 

v.  Kelly,  26,   251. 

v.  Kuykendall,  86,  87. 

v.  People,  382. 

v.  Philadelphia    &    R.    R.    Co., 
53,   54,   62,   297. 

v.  Royeer,  453. 
Summer  v.   Mitchell,   81,  118,   194, 

412. 
Summers    v.    Bergner    Brew.    Co., 

141,  492. 

Summons  v.  Beaubien,  343. 
Sumner  v.  Barnard,  543. 


v.  Child,   349. 

v.  State,  24. 

Sumrall  v.  Sun  Mut.  Ins.  Co.,  110. 
Sunderland  v.   Hood,  185. 
Sunderlin    v.    Struthers,    534,    535. 
Sunkler  v.   McKenzie,  488. 
Sun   Mut.    Ins.   Co.   v.   Ocean    Ins. 

Co.,   53. 

Supples  v.  Cannon,  512. 
Supply  Ditch  Co.  v.   Elliott,   465. 
Susquehanna   Bridge  &  B.   Co.   v. 

General  Ins.  Co.,  111. 
Susquehanna  County  v.  Deans,  364. 
Sutline  v.  Jones,  515,  530. 
Sutphen  v.  Cushman,  49,  233,  322, 

323. 
Sutton  v.  Beckwith,  553. 

v.  Buck,  343. 

v.  Chicago,  St.  P.  M.  &  O.  R. 
Co.,  394. 

v.  Devonport,  165. 

v.  Sadler,  178,  331,  333. 
Swafford  v.  Whipple,  43. 
Swails  v.  State,  382. 
Swain  v.   Chase,   102. 

v.  Comstock,  400,  403. 
Swales  v.   Grubbs,  424,   453. 
Swan,  Ex  parte,  565. 
Swan   v.   Munch,   354,  362,  364. 

v.  North  British  A.  Co.,  558. 
Swartwout   v.    Michigan   Air  Line 

R.  Co.,   111. 
Swearengen    v.    Gulick,    100,    101, 

105,  106. 
Sweatland    v.    111.    &   M.   Tel.    Co., 

287. 

Sweeney  v.  Metropolitan  Life  Ins. 
Co.,   18,   37. 

v.  Talcott,  110. 
Sweet  v.  Maupin,  512. 

v.  Tuttle,   511. 


TABLE  OF  CASES. 


675 


[REFERENCES  ARE  TO  PAGES.] 


Sweeting  v.  Fowler,  196. 
Sweetland  v.  Buell,  121. 

v.  Porter,  195. 

Sweetser  v.  Lowell,  306,  310. 
Swett  v.  Cutts,  36o. 

v.  Hooper,  1?0. 
Swift  v.  Kingsley,  464. 

v.  Pacific  Mail  S.  S.  Co.,  214. 
Swindler  v.  Hilliard,  291. 
Swiney  v.   Swiney,  121. 
Swinnerton  v.  Columbian  Ins.  Co., 

426,  445. 

Sword  v.  Wickersham,  110. 
Sydney,  The,  296. 
Syme  v.  Stewart,  412. 
Symmes  v.  Major,  391. 


Table  Mountain  G.  &  S.  Min.  Co. 

v.  W.  D.  S.  Min.  Co.,  148. 
Tabler  v.  State,  187. 
Tabor  v.  Merchants'  Nat.  Bank,  127, 

128. 

Tacoma  Coal  Co.  v.  Bradley,  37. 
Tacoma    Grocery    Co.    v.    Draham, 

94. 

Taff  v.  Hosmer,  19,  332,  334. 
Taft  v.  Fiske,  467. 

v.  Sergeant,   222. 
Taggart    v.    Newport    St.    R.    Co., 

440. 

v.  Risley,  519,  520. 
Tait  v.  Frow,  526. 
Talbot  v.  Hudson,  428. 
v.  McGee,    469. 
v.  Seeman,  377,  414. 
Talbott  v.  Thorn,  366. 
Talcot  v.  Commercial  Ins.  Co.,  147. 
Taliaferro  v.  Com.,  368,  372. 
Talladega  Ins.  Co.  v.  Landers,  110. 
Tally  v.  R3ynolds,  83,  339. 


Tampa  Waterworks  Co.   v.   Cline, 

55. 

Tanner  v.  Hughes,  59,  62,  87. 
Tanney  v.  Tanney,  559. 
Tapp  v.  Lee,  558. 
Tar  River  Nav.  Co.  v.  Neal,  110. 
Tardos  v.  Ship  Toulon,  291. 
Tarleton  v.  Johnson,  499. 
Tarver  v.  Garlinston,  465. 
Tate    v.    Commercial    Bldg.    Ass'n, 
544. 

v.  Penne,  247,  248,  249. 

v.  Tate,   124. 

v.  Williamson,  181. 
Tatum  v.  Catomore,  135. 

v.  McLellan,  181. 
Taussig  v.  Bode,  283,  284. 
Tayloe  v.   Merchants'  F.   Ins.  Co., 

318. 

Taylor,  In  re,  235. 
Taylor   v.    Barclay,   380,   409,   441, 
445. 

v.  Barren,  502. 

v.  Beckham,  93,   94,  477. 

v.  Bowles,  126. 

v.  Buttrick,  218. 

v.  Com.,  167. 

v.  Conner,   320. 

v.  Cresswell,  147,  333,  336,  337. 

v.  Diplock,  263. 

v.  Graham,  388. 

v.  Horde,  119. 

v.  Miles,   174. 

v.  Mutual  R.  F.  L.  Ass'n,  487. 

v.  Needham,   531. 

v.  Newberne  Com'rs,  110. 

v.  Pegram,  333,  334,  337. 

v.  Robinson,  236. 

v.  Shufford,  541,   542. 

v.  Snyder,  119. 

v.  Spears,  39,  154. 


676 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  PAGES.] 


v.  Street,  536. 

v.  Swett,  241. 

v.  Taylor,   183,   242. 

v.  Trich,  333. 

v.  Willans,  470. 
Tea  v.  Gates,  42. 
Teass  v.  Saint  Albans,  344. 
Teegarden  v.  Lewis,  179,  180,  333. 
Teetshorn  v.  Hull,  148. 
Tefft  v.  Munson,  522,  531. 
Telpel  v.  Hilsendegen,  279,  282. 
Telegraph   Co.    v.    Davenport,   560. 

v.  Griswold,  287. 
Tempel  v.  Dodge,  231. 
Temple  v.  State,  400. 
Templeton  v.  Morgan,  93,  386. 
Tenant  v.  Tenant,  224. 
Tennessee  C.,  I.  &  R.  Co.  v.  Ham- 
ilton, 33. 

v.  Wheeler,    121. 
Tenny  v.  Jones,  347,  350. 
Terre  Haute  &  I.  R.  Co.  v.  Clem, 

272. 

Terre  Haute  &  L.  R.  Co.  v.  Sher- 
wood, 290,  291,  293. 
Terrell  v.  Weymouth,  553,  558. 
Territory  v.  Benoit,  197. 

v.  Lucero,  201,  202. 
Territt  v.  Cowenhoven,  551. 
Terry  v.  Bleight,  89,  90. 

v.  Life  Ins.   Co.,  330. 

v.  Merchants'  &  P.  Bank,  398. 

v.  Milwaukee,  400. 

v.  Munger,  478. 

v.  Rodahan,  64,  516. 
Terry's  Estate,  In  re,  239,  240. 
Terry's  Ex'r  v.  Drabenstadt,  496. 
Terryberry  v.  Woods,  304,  321. 
Teter  v.  Teter,  241. 
Teutonia   Life   Ins.    Co.    v.   Ander- 
son, 549. 


Teutonia  Loan  &  B.  Co.  v.  Turrell, 

411. 

Tewksbury  v.  Schulenberg,  428. 
Texas  Standard  Oil  Co.  v.  Adoue, 

420,  429. 
Texas  &  N.  O.  R.  Co.  v.  Crowder, 

276. 
Texas  &  P.  R.  Co.  v.  Adams,  294. 

v.  Black,  437. 

v.  Reeves,   291. 

v.  Richmond,   292. 

v.  Volk,  277. 

Thalls  v.  Smith,  517,  522. 
Thames  v.   Rembert's  Adm'r,   173, 

176. 

Thamling  v.  Duffey,  129. 
Tharp  v.  Com.,  108. 
Thatcher  v.  Hayes,  304. 

v.  Powell,   89. 
Thayer  v.  Barney,  117. 

v.  Middlesex     Mut.     Ins.     Co., 
169. 

v.  Mowry,   307. 
Thielen  v.  Richardson,  518. 
Thing  v.  Libbey,  222. 
Thoemke  v.  Fiedler,  365. 
Thomas  v.  City  Nat.  Bank,  84. 

v.  Com.,   390,  408,  434. 

v.  England,  363. 

v.  Hubbell,  503. 

v.  Malcom,  94. 

v.  Pendleton,  225,  231. 

v.  People,  200,  263. 

v.  Philadelphia   &   R.    R.    Co., 
299. 

v.  Southard,  102. 

v.  State,   44. 

v.  Thomas,  115,  254,  255,  260. 

v.  Westchester  County   Sup'rs, 
318. 

v.  West  Jersey  R.  Co.,  547. 


TABLE  OF  CASES. 


677 


[REFERENCES  ABE  TO  PAGES.] 


Thompson  v.  Candor,  123. 

v.  Carr,  83. 

v.  Clark,  491. 

v.  Com.,  204. 

v.  Davitte,  162,  167,  184. 

v.  Dearborn,  125. 

v.  Gowen,  134. 

v.  Griffin,  489. 

v.  Haskell,  386. 

v.  Maloney,  491. 

v.  Monrow,  225,  228,  229. 

v.  Nims,  242. 

v.  North  Mo.  R.  Co.,  278. 

v.  Phoenix  Ins.  Co.,  220. 

v.  Powles,  409. 

v.  Roberts,    498. 

v.  Rose,  153. 

v.  Stewart,  411. 

v.  Thompson,  99,  158,  168,  468, 
515,  516,  565. 

v.  West,  130. 
Thomson  v.  Porter,  62,  88. 

v.  Shelton,  564. 
Thomson-Houston      Elec.      Co.      v. 

Palmer,   457. 
Thoreson   v.    North   Western   Nat. 

Ins.  Co.,  25. 
Thorington    v.    Montgomery    City 

Council,  175. 

Thornington  v.  Gould,  112. 
Thornton   v.   Appletpn,  336. 

v.  Osden,  179. 

Thoroughgood's  Case,  210,  212. 
Thorpe  v.  Holdsworth,  565. 
Thorson  v.  Peterson,  381. 
Thrall  v.  Wright,  144. 
Threadgill  v.  Anson  County  Com'rs, 

341,  342. 

Threefoot  v.  Hillman,  540. 
Throckmorton    v.    Chapman,    162, 

164,  166. 
Thurston  v.  Lloyd,  131. 


v.  Percival,  225. 

v.  Perry,   304. 
Thurtell  v.  Beaumont,  27. 
Thweatt  v.  McCullough,  305. 
Thyng   v.    Fitchburg   R.    Co.,    276, 

279. 

Tibbett  v.  Shapleigh,  491. 
Tidmarsh  v.  Washington  F.  &  M. 

Ins.  Co.,  36,  172. 
Tiffany  v.  Com.,  21,  201. 
Tilghman  v.  Little,  552. 
Tillie,  The,  156,  157,  168. 
Tillman  v.  Heller,  173,  175. 

v.  Otter,  82. 
Tillotson  v.  Kennedy,  520. 

v.  Mitchell,   568. 
Tilly  v.  State,  369. 
Timm  v.  Bear,  206. 
Timson  v.  Moulton,  232. 
Tindall's  Trust,  In  re,  260. 
Tingley  v.  Cowgill,  20,  183,  332. 
Tinkham  v.  Arnold,  364. 
Tinkler  v.  Cox,  228,  229. 
Tinneran  v.  Leonard,  100. 
Tioga  County  v.  South  Creek  Tp., 

246. 

Tipton  v.  Sanders,  93. 
Tisdale  v.  Connecticut  M.  L.  Ina. 
Co.,  257,  259,   262. 

v.  Delaware   &   H.   Canal   Co., 
466. 

v.  Maxwell,  321,  342. 
Tison  v.  Smith,  384. 
Tobin  v.  Bass,  121. 

v.  Shaw,  159. 
Todd  v.  Grove,  179. 

v.  Old  Colony  &  F.  R.  R.  Co., 

486. 

Toebbe  v.  Williams,  118,  134. 
Tognini  v.  Kyle,  176. 
Tohey  v.  Taunton,  526. 
Toland  v.  Corey,  219. 


678 


TABLE  OP  CASES. 


[REFERENCES  ARE  TO  PAGES.] 


Toledo  v.   Sheill,  146. 
Toledo,  W.  &  W.  R.  Co.  v.  Beggs, 
298. 

v.  Braimagan,  280. 

v.  Larmon,  277. 
Toler  v.  State,  156,  159. 
Tolman  v.  Syracuse,  B.  &  N.  Y.  R. 
Co.,  281. 

v.  Smith,  565. 

Tolmie's  Lessee  v.  Thompson,  103. 
Tomkins  v.  Tomkins,  215. 
Tomlinson  v.  Greenfield,  424. 
Tompkins  v.  Nichols,  173. 
Tooke's  Case,  51. 
Tooker  v.  Beaufort,  390. 
Tocmey  v.  London,  B.  &  S.  C.  R. 

Co.  8. 

Tootle  v.  Coleman,  493. 
Topeka  v.  Zufall,  435. 
Topper  v.  Snow,  125. 
Totel    v.    Bonnefoy,    354,    359,    360. 
Tottle  v.  Maben,  304. 
Towsood  v.  Pirie,  430. 
Towle  v.  Towle,  503. 
Towles  v.  Roundtree,  301. 
Towne   v.    Butterfield,    550. 
Towns  v.  Smith,  149. 
Townsend  v.  Cowles,  221. 

v.  Downer's    Adm'r,    347,    348, 
349,  350. 

v.  Downer's  Estate,  90. 

v.  Townsend,  102. 
Townshend  v.  Townshend,  337. 

338. 

Townson  v.  Tickell,  125. 
Towsey  v.  Shook,  32,  126,  128,  172. 
Towson  v.  Havre  de  Grace  Bank, 

286. 
Tracy  v.  Atherton,  358,  360. 

v.  Roberts,  555. 
Trader  v.  Lowe,   222. 
Traders'  Nat.  Bank  v.  Rogers,  566. 


Trainer  v.   Trumbull,   145. 
Trambly    v.    Ricard,    211,    212. 
Travelers'    Ins.    Co.    v.    McConkey, 

266. 

Trayhern  v.  Colburn,  508. 
Treadway  v.   Sioux  City  &  St.  P. 

R.  Co.,  464,  469. 
Treadwell  v.  Bulkley,  125. 

v.  Whittier,    298. 
Treat  v.  Orono,  116. 
Tredwell  v.  Blount,  127. 
Tregany  v.  Fletcher,   389. 
Treiber  v.  Burrows,  286. 
Tremblay  v.  Aetna  L.  Ins.  Co.,  105. 
Trenier  v.  Stewart,  425,  427. 
Trentman  v.  Eldridge,  540. 
Trenton    Banking   Co.    v.    Duncan, 

558. 

v.  Woodruff,  323. 

Trenton  H.  R.  Co.  v.  Trenton,  96. 
Trenton    Pass.    R.    Co.    v.    Cooper, 

271. 

Trevivari  v.  Lawrence,  517,  522. 
Trew  v.  Railway  Pass.  Assur.  Co., 

266. 

Trigg  v.  Read,  219,  220. 
Trimble  v.  Trimble,  225,  237,  243. 
Trimbo   v.    Trimbo,    338. 
Tripe  v.  Marcy,  306,  308. 
Troewert  v.  Decker,  234. 
Trolan  v.  Rogers,  531,  532. 
Trott  v.  Warren,   109. 
Trotter  v.  Harris,  356. 

v.  St.  L.  Public  Schools,  94. 
Trowbridge  v.  Spinning,  415. 
Truesdale  v.  Farmers'  L.  &  T.  Co., 

488. 

Trull  v.  Eastman,  517. 
Trumble  v.   Ter.,    62,   201,   202. 
Truslove  v.  Burton,  470. 
Trustees   of   Wadsworthville   Poor 

School    v.    Jennings,    364,    366. 


TABLE  OF  CASES. 


679 


[REFERENCES  ARE  TO  PAGES.] 


Tucker  v.  Baker,  310,  312,  314. 

v.  Baldwin,  549. 

v.  Harris,  81,  102,  107. 

v.  State,   38,   389,   441. 
Tucker's  Lessee  v.  Moreland,   222 
Tufts  v.  Hatheway,  161. 
Tunnell   v.    Ferguson,   25. 
Turley  v.  Thomas,  404. 
Turner  v.  Cheesman,  333,   336. 

v.  Collins,  179. 

v.  Com.,    156,   203. 

v.  Fish,   397,  404. 

v.  Flinn,  560. 

v.  Gaither,  222. 

v.  Hart,    365. 

v.  Hawkeye  Tel.  Co.,  158,  287. 

v.  Rusk,  337. 

v.  Thompson,  365,  515. 

v.  Turner,   159,    181,   305,   322, 
323,  342. 

v.  Younker,  24,  176. 
Turney  v.  Wilson,  290. 
Turnley  v.  Black,  341. 
Turnure  v.  Turnure,  184. 
Tuskaloosa   C.   S.   Oil   Co.   v.   Per- 
ry, 322. 

Tute  v.  James,  503. 
Tuteur  v.  Chase,  173. 
Tuttle   v.   Chicago,   R.   I.   &   P.   R. 
Co.,   296. 

v.  Jackson,  344. 

v.  Raish,  151. 

v.  Turner,  124. 
Tutton   v.   Darke,  424. 
Twemlow  v.  Oswin,  257. 
Twilley  v.  Perkins,  66. 
Two  Rivers  Mfg.  Co.  v.  Day,  566, 

567. 
Tyler  v.  Gallop's  Estate,  143. 

v.  Gardiner,  184. 

v.  Hall,   120,    523. 

v.  Herring,   95. 


v.  Moore,  540. 

v.  Trabue,  224. 

v.  Western  U.  Tel.  Co.,  287. 

v.  Wilkinson,  354,  358. 
Tyner  v.  Stoops,  317,  320. 
Tyrrell  v.  Baldwin,  493. 

v.  Painton,   216. 
Tyson  v.  Passmore,  216,  221. 

U 

Udderzook  v.  Com.,  429. 
Uggla  v.  West  End  St.  R.  Co.,  271, 

277. 

Uhl  v.  Com.,  187. 
Uhlman  v.  Arnholdt  &  S.  Brew.  Co., 

86. 

Ullman  v.  Lion,  103. 
Ulrich  v.  Ulrich,  60,  304. 
Unckles  v.  Hentz,  221. 
Underbill  v.  Hernandez,  409. 
Underwood  v.  French,  513. 

v.  Hart,   469. 

v.  Hossack,  119. 

v.  Wing,   263. 

v.  Wolf,  34,  37. 
Union  Bank  v.  Geary,  220. 

v.  Stone,  161. 

Union  Coal  Co.  v.  La  Salle,  468. 
Union   Mut.   Ins.   Co.   v.  Campbell, 

123. 

Union  M.  L.   Ins.  Co.  v.  Kirchoff, 
527. 

v.  Thomas,  207. 
Union   Nat.    Bank   v.   Barber,   126, 

130. 
Union  Pac.  R.  Co.  v.  Botsford,  157. 

v.  De   Busk,   275. 

v.  Hisrh,  273. 

v.  Keller,  275. 

v.  McDonald,  13. 

Union  S.  Y.  Co.  v.  Conoyer,  279. 
United  States  v.  Amedy,  108,  111. 


680 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  PAGES.] 


v.  Anthony,   217. 

V.  Armstrong,  200. 

v.  Ash,    435. 

v.  Burns,   406,   449. 

v.  Carr,   64,  89. 

v.  Central  Pac.   R.   Co.,  234. 

v.  Chaves,  417,  418. 

v.  De  Amador,  115. 

v.  De  Quilfeldt,  188, 

v.  Douglass,  23,  24. 

v.  4000    American    Gold    Coin, 

406. 

v.  Gooding,  196. 
v.  Green,  115. 
v.  Hayward,  31,  42. 
v.  Hutchings,   410. 
v.  Jackson,    382. 
v.  Johns,   410. 
v.  Johnson,  375,  382. 
v.  Jones,  93,  197,  368. 
v.  La  Vengeance,   427. 
v.  Lawrence,   327. 
v.  Linn,  131,  134. 
v.  McDowell,  487. 
v.  McGlue,  327. 
v.  Morrissey,  408. 
v.  Nelson,  43. 
v.  Palmer,    409,    410. 
v.  Perot,  417. 
v.  Randall,  157. 
v.  Ross,  64,  89. 
v.  Schneider,  492. 
v.  Searcey,   49,   53,   54,    60. 
v.  Shapleigh,    26. 
v.  The  Peggy,  418. 
v.  Trans-Mo.     Freight     Ass'n, 

233. 

v.  Turner,  396,  417. 
v.  Wagner,  408. 
v.  Weed,   93. 
v.  Williams,  402. 


U.  S.  Bank  v.  Dandridge,  80,  110, 
111,  123. 

v.  Lyman,   110. 
v.  Stearns,  111. 

U.  S.   Casualty  Co.   v.  Kacer,  264. 
U.   S.   Exp.   Co.   v.   Backman,   290, 
291. 

v.  Jenkins,  27. 
v.  Keefer,  431. 
United  S.   Tel.  Co.  v.   Gildersleve, 

287. 

Unity  v.  Burrage,  392,  401. 
University    of     Mich.     v.     Detroit 

Young  Men's  Soc.,  113,  114. 
University   of   N.   C.   v.   Harrison, 

253,  300. 
University  of  Vt.  v.  Reynold's  Ex'r, 

347,   350,  358. 
Upton  v.  Englehart,  216. 
v.  Hume,  208. 

v.  Tribilcock,    211,    218,    220. 
Urmston  v.  State,  152,  408. 
Usher  v.  Richardson,  540. 
Usina  v.  Wilder,  523. 
Utica  Bank  v.  Mersereau,  517,  531. 
542,  552. 

v.  Smedes,  400. 


Vail  v.  Foster,  317. 

Valentine  v.  Piper,  355. 

Vallett  v.  Parker,  131. 

Valley  R.  Co.  v.  Lake  Erie  I.  Co., 

548. 

Valsain  v.  Cloutier,  501,  502. 
Valser  v.  Wear,  467. 
Vanada's  Heirs  v.  Hopkins'  Adm'rs, 

430. 
Van  Aernam  v.  Van  Aernam,  248, 

250,  251. 
Van  Baalen  v.  Dean,  343. 


TABLE  OF  CASES. 


681 


[REFERENCES  ARE  TO  PAGES.] 


Van  Buren  v.  Wells,  96. 
Vance  v.  Farmers'  &  M.  Sav.  Bank, 
395,  396. 

v.  Rankin,  457. 
Vanderpoel  v.  Gorman,  228. 
Vanderveere  v.  Gaston,  108. 
Vanderwerker  v.  People,  382. 
Van  Dusan  v.  Van  Dusan,  239. 
Van  Duzer  v.  Howe,  561. 
Vandyck  v.  Van  Beuren,  348. 
Van  Dyke  v.  Maguire,  463. 
Van  Hook  v.  Somerville  Mfg.  Co., 

113. 

Van  Keuren  v.  Hoffman,  520. 
Van  Kleeck  v.  Hammell.  491. 
Van  Loon  v.  Smith,  307,  315. 
Van  Matre  v.  Sankey,  105. 
Van  Namee  v.  Bradley,  343. 
Van  Ness  v.  Hadsell,  549. 
Van  Norman  v.  Gordon,  104,   105. 
Van  Omeron  v.  Dowick,  446. 
Van  Raalte  v.  Harrington,  173,  176. 
Van    Rensselaer   v.    Kearney,    520, 

531. 

Van  Sandau  v.  Turner,  392,  393. 
Van  Winkle  v.  South  Car.  R.  Co., 

288. 

Varner  v.  Carson,  179. 
Vassault  v.  Seitz,  391. 
Vastine  v.  Wilding,  341. 
Vathir  v.  Zane,  129. 
Vaughan  v.  Com.,  21. 

v.  Fowler,  136. 

v.  Goodman,  124,  125. 

v.  Rhodes,   247. 
Veith  v.  Salt  Co.,  272. 
Veiths  v.  Hagge,  34,  41. 
Velsian  v.  Lewis,  343,  560. 
Venable  v.  Dutch,  34. 
Verdler  v.  Port  Royal  R.  Co.,  555. 
Vergin  v.   Saginaw,   166. 
Verner  v.  Sweitzer,  283. 


Vernon  v.  Vernon's  Heirs,  250. 
Verplanck  v.  Van  Buren,  502. 
Vicksburg  v.  Hennessy,  280. 
Vicksburg  &  M.  R.  Co.  v.  Phillips, 

273. 
Victor  Mill  &  Min.  Co.  v.  Justice 

Ct.,  103. 

Ville  Du  Havre,  The,  160. 
Vinal  v.  Continental  C.  &  I.  Co.,  216. 
Vincent's  Appeal,  238. 
Vining   v.   Baker,   340. 
Vivian  v.  State,  383,  431. 
Volkmar  v.  Manhattan  R.  Co.,  271. 
Von  Mumm  v.  Wittemann,  420. 
Voorhees  v.  Jackson,  107. 
v.  Voorhees,   238. 
v.  Voorhees'  Ex'rs,  241. 
Vorce  v.  Page,  83. 
Vosburgh  v.  Diefendorf,  127,  129. 
Vose  v.  Morton,  491. 
Vossen  v.  Dautel,  362. 
Vreeland  v.  Vreeland,  124. 
Vusler  v.  Cox,  192. 

W. 

Wabash,    St.    L.    &    P.    R.    Co.  v. 

Locke.  7,  269,  276. 
Wabash  &  E.  Canal  v.  Bledsoe,  460. 
Wachter  v.  Phoenix  Assur.  Co.,  554. 
Waddington  v.  Buzby,  186. 
Wade  v.  Pulsifer,  179. 
Wadhams  v.  Swan,  517. 
Wadleigh  v.  Glines,  540. 
Wadsworthville     Poor     School     v. 

Jennings,  355,  356,  357,  358,  359, 

361. 
Wagoner  v.  State,  139. 

v.  Wagoner,  256,  258. 
Wagstaff  v.  Wilson,  470. 
Wahle  v.  Wahle,  507,  511. 
Wailing  v.  Toll,  144. 
Wainwright's  Appeal,  185. 


682 


TABLE  OF  CASES. 


[REFERENCES  ABE  TO  PAGES.] 


Wait  v.  Brewster,  317. 

v.  McNeil,  9. 
Waite  v.  Coaracy,  256. 

v.  Teeters,  507. 
Wakelin  v.  London  &  S.  W.  R.  Co.. 

272. 

Walcot  v.  Alleyn,  335,  337. 
Walcott  v.  Metropolitan  L.  Ins.  Co., 
266. 

v.  Wells,  393. 
Walden  v.  Bolton,  470. 

v.  Canfleld,   386,  410. 
Waldo  Bank  v.  Greely,  131. 
Waldrip  v.  Black,  322. 
Walker  v.  Chicago,  R.  I.  &  P.  R. 
Co.,  272. 

v.  Com.,  370. 

v.  Davis,  126. 

v.  Detroit  Transit  R.   Co.,   16, 
341. 

v.  Egbert,  211. 

v.  Hall,  521. 

v.  Jessup,  95. 

v.  Manhattan  Bank,  283. 

v.  People,  326,  329. 

v.  Ferryman,  502. 

v.  Philadelphia,  490,  491,  501. 

v.  Simpson,  192. 

v.  Sioux  City   &    I.  F.   T.   Lot 
Co.,  528. 

v.  State,  26,  159. 

v.  Wooster's  Adm'r,  462. 
Wall  v.  Livezay,  295,  298,  299. 

v.  Wall,  102,  105,  123,  487. 
Wallace  v.  First  Parish  in  Towns- 
end,  113. 

v.  Fletcher,  354,  358,  359,  360, 
366. 

v.  Harris,   168. 

v.  Hull,  149. 

v.  Lincoln  Sav.  Bank,  38,  268. 

v.  Matthews,  474,  475. 


v.  Mattice,  173. 

v.  Maxwell,  355,  359,  541. 

v.  Pereles,  150,  497. 

v.  Western  N.  C.  R.   Co.,  278r 

281. 

Wallace's  Case,  236,  237,  239. 
Wallace's  Lessee  v.  Miner,  537. 
Wallingford  v.  Chicago  &  G.  R.  Co., 

290,  292. 

Walrod  v.  Ball,  149. 
Walsh  v.  Dart,  231,  413. 

v.  Hunt,  561. 

v.  Missouri  P.  R.  Co.,  339,  383. 

v.  Virginia  &  T.  R.  Co.,  273. 
Walsh's  Adm'x  v.  Vermont  Mut.  F. 

Ins.  Co.,  123. 

Walters  v.  Chicago,  R.  I.  &  P.  R. 
Co.,  141. 

v.  Short,  134. 

v.  State,  203. 

v.  Wood,  498. 
Walton  v.  Burton,  121. 

v.  Cox,  497. 

Walton  Guano  Co.  v.  Copelan,  212. 
Wambaugh  v.  Schenck,  253. 
WTampler  v.   State,   408. 
Wampol  v.  Kountz,  562. 
Wamsley  v.  Atlas  S.  S.  Co.,  154. 
Wanger  v.  Hippie,  362. 
Wanmaker    v.    Van    Buskirk,    116, 

307,  315. 
Ward  v.  Armstrong,  181. 

v.  Bourne,  317. 

v.  Cheney,  132,  135. 

v.  Dougherty,  120,  122. 

v.  Dulaney,  115,  337. 

v.  Hasbrouck,  85. 

v.  Henry,  386. 

v.  Lewis,  120. 

v.  Metropolitan  L.  Ins.  Co.,  46, 
89. 

v.  Morrison,  413. 


TABLE  OF  CASES. 


683 


[REFERENCES  ARE  TO  PAGES.] 


v.  Southern  Pac.  Co.,  273. 

v.  Warren,  358,  360,  366. 
Ward's  Heirs  v.  Mclntosh,  344,  345, 

533. 

Ward's  Lessee  v.  Barrows,  90,  91. 
Warder  v.  Tucker,  220. 

v.  Willyard,  137,  463. 
Ware  v.  Gay,  298. 
Warfleld  v.  'Railroad,  33. 
Warfield's  Will,  In  re,  99,  107. 
Wark  v.  Willard,  522,  536. 
Warlick  v.  White,  157,  249,  251. 
Warner  v.   Com.,   413. 

v.  Dove,   173. 

v.  Moran,  190. 

v.  Mullane,    499. 

v.  Page,  345. 

v.  Watson,  558. 
Warnock  v.  Harlow,  501. 
Warnpol  v.  Kountz,  559. 
Warren   v.   Jacksonville,   117,   121, 
123,   209. 

v.  Layton,  134. 

v.  Union   Bank,   103. 
Wartone  v.  Simon,  248. 
Warwick   v.   Cooper,   143. 
Washington  v.  Finley,  400. 

v.  Hosp,  90. 
Washington,  A.  &  G.  R.  Co.  v.  A. 

&   W.   R.   Co.,   105. 
Washington  County  M.  Ins.  Co.  v. 

Chamberlain,  232. 
Washington  &  G.   R.   Co.  v.  Glad- 
mon,  142.  278. 

v.  Harmon's  Adm'r,  278. 
Water's  Appeal,  532,  558. 
Waterman  v.  Chicago-  &  A.  R.  Co., 
278,  282. 

v.  Sprague  Mfg.  Co.,  216. 
Watertown  v.  Greaves,  278. 
Watkins  v.  Brant,  179. 

v.  Peck,  350,  354,  355,  360. 


v.  Pintard,  159,  163. 

v.  Wassell,  523. 

v.  Young,  302. 
Watson  v.  Adams,  253. 

v.  Elaine,  322,  527. 

v.  Clark,  147. 

v.  Com.,   203. 

v.  England,    253. 

v.  Hay,  393. 

v.  Hillman,   124. 

v.  King,    256,   469. 

v.  Mahan,  182. 

v.  Richardson,   85,   489,   506. 

v.  State,   430,  435. 

v.  Tindal,  252. 
Watt  v.  Hoch.  404. 

v.  Kirby,  18. 

v.  People,  167. 

v.  Trapp,  361. 
Watters  v.  Parker,  465. 
Watterson   v.   Watterson,   215. 
Watts  v.  Jensen,  271,  276. 

v.  Owens,  27. 

v.  Rice,  507. 
Waugh  v.  Morris,  223. 
Wausau  Boom  Co.  v.  Plumer,  339. 
Way  v.  Arnold,  523. 

v.  Lewis,  503. 
Weakley  v.  Bell,  322. 
Weatherford  v.  Weatherford,  246. 
Weatherford,   M.   W.   &   N.   W.   R. 

Co.    v.  Duncan,  164. 
Weaver  v.  Brown,  99. 

v.  Burr,  35. 

v.  McElhenon,  431. 

v.  Nixon,  320. 

v.  State,  45. 
Weaver's  Appeal,  301. 
Webb  v.  Alexandria  City  Council, 
219. 

v.  Buckelew,  488. 

v.  Chambers,  88. 


€84 


TABLE  OP  CASES. 


[REFERENCES  ARE  TO  PAGES.] 


v.  Dean,  306. 

v.  Fox,    340,   343. 

v.  Herne  Bay  Com'rs,  527. 

v.  Mullins,  384. 

v.  State,    23. 
Webber  v.  Davis,  80,  154. 

v.  Dunn,  36. 

v.  Jackson,  176. 

v.  Sullivan,  184. 
Weber  v.  Christen,  122,  124. 

v.  Rothchild,  34,  43,  173,  175. 
Webster  v.  Birchmore,  256. 

v.  Lowell,  361,  362. 

v.  Mann,  501. 

Weddingen  v.  Boston  Elastic  Fab- 
ric Co.,  320. 
Wedge  v.  Moore,  533. 
Wedgwood's  Case,  194. 
Weed  v.  Keenan,  364. 

v.  Mutual  Ben.  L.  Ins.  Co.,  331. 
Weed  Sew.  Mach.  Go.  v.  Emerson, 

519,  526,  528. 
Weeks  v.  McNulty,   165,  166,   269, 

285. 

Weems  v.  Masterson,  102.  , 

Weidman  v.  Symes,  561. 
Weil  v.  Israel,  207. 
Weinberg  v.  State,  116. 
Weinstein  v.  Jefferson  Nat.  Bank, 
88,  567. 

v.  National  Bank,  564,  566. 
Weir  v.  Marley,  504. 

v.  Weir's  Adm'r,  303. 
Weisbrod  v.   Chicago  &  N.  W.  R. 

Co.,  553. 
Weiss  v.  Pennsylvania  R.  Co.,  67, 

278. 
Welch  v.  Coulborn,  132, 133. 

v.  Lindo,   341. 

v.  Sackett,  125. 

v.  Seaborn,  325. 
Welcome  v.  Upton,  361. 


Welland    Canal   Co.    v.    Hathaway, 

546. 

Wellar  v.  People,  164,  165. 
Wellborn  v.  Finley,  538. 

v.  Weaver,  123. 
Weller  v.  Chicago,  M.  &  St.  P.  R. 

Co.,   278. 

Wellington's  Case,  91. 
Wells  v.  Jackson  Iron  Mfg.  Co.,  385, 
388. 

v.  Missouri  P.  R.  Co.,  387. 

v.  Rodgers,  113. 

v.  Steckelberg,    515,    530,    C3?», 
538. 

v.  Williams,  419. 
Welsh  v.  Argyle,  278. 

v.  State,  45,  435. 
Welton  v.  Atkinson,  231. 
Welty  v.  Lake   Superior,  T.   &   T. 

R.  Co.,  156. 

Wemet  v.  Missisquoi  Lime  Co.,  320. 
Wenans  v.  Lindsey,  470. 
Wendel  v.  North,  496. 
Wendell  v.  Blanchard,  346. 

v.  Moulton,  347. 

v.  New  York    C.   &   H.    R.   R. 

Co.,  281. 

Wenegar  v.  Boltenbach,  468. 
Wenner  v.  Thornton,  100. 
Wenning  v.  Teeple,  151. 
Went  worth  v.  Lloyd,  166. 

v.  Wentworth,    253,    254,    255, 

261. 

Werborn  v.  Austin,  310. 
Werner   v.    Litzsinger,   162,   168. 
West  v.  Averill  Grocery  Co.,  113. 

v.  Brison,   307,  308. 

v.  Jones,  558,  563. 

v.  Rae,  375. 

v.  State,   74,   244. 
Westbrook  v.  Miller,  388. 

v.  Mobile  &   O.   R.  Co.,  142. 


TABLE  OP  CASES. 


685 


[REFERENCES  ARE  TO  PAGES.] 


Western    Assur.    Co.   v.    Mohlman, 

38. 
Western     Granite     &     M.     Co.    v. 

Knickerbrocker,  365. 
Western  Min.  &  Mfg.  Co.  v.  Pey- 

tonia  C.  C.  Co.,  520. 
Western    Transp.    Co.    v.    Downer, 
288,  292. 

v.  Newhall,  213,  290. 
Western  Twine  Co.  v.  Wright,  88. 
Western  Union  Tel.  Co.  v.  Carew, 
287. 

v.  Chamblee,  287. 
v.  Crall,   287. 
v.  Henderson,  287. 
v.  Howell,  287. 
v.  Meek,  287. 
v.  Robinson,  67,  381. 
v.  State,  270. 
v.  Tyler,  287. 
v.  Yopst,  234. 

Western  &  A.  R.  Co.  v.  Morrison, 
161,  165,  167. 

v.  Roberson,  376,  401. 
Westfleld  G.   &   M.  Co.  v.  Nobles- 

ville  &  E.  G.  R.  Co.,  478. 
Westoby  v.  Day,  403. 
Weston  v.  Gravlin,  25. 

v.  Higgins,   336,  343. 
West  Pub.  Co.  v.  Lawyers'  Co-op. 

Pub.  Co..  31. 

Wetherbee  v.  Dunn,  386,  388. 
Wetherell  v.  Bird,  472. 
Wetherly  v.  Straus,  283. 
Wetzler  v.  Kelly,  425. 
Weyh  v.  Boylan,  555. 
Weymouth  v.  Sanborn,  317. 
Whalen   v.   Consolidated   Traction 

Co.,  295. 

Whaley  v.  Jarrett,  364. 
Wheat  v.  State,  44. 
Wheatley  v.  Baugh,  365. 


Wheaton   v.    North    British    &    M. 
Ins.  Co.,  565,  567. 

v.  Wheaton,   218. 
Wheeler  v.  Constantine,  232,  233. 

v.  Oceanic    S.   N.   Co.,   289. 

v.  Single,  122. 

v.  Webster,  447. 

v.  West,  467. 

v.  Whipple,   185. 
Wheeler  &  W.  Mfg.  Co.  v.  Hell,  190. 

v.  Long,  211. 
Whitaker  v.  Ballard,   83. 
Whitbeck  v.  Van  Ness,  319,  320. 
White,  Ex  parte,  197. 
White  v.  Ambler,  325. 

v.  Ashton,  562. 

v.  Beaman,  312. 

v.  Brocaw,  520. 

v.  Campbell,  39. 

v.  Chapin,  354,  362,  365. 

v.  Chicago,  M.  &  St.  P.  R.  Co., 
275. 

v.  Concord  R.,  273. 

v.  Gushing,  440. 

v.  Edmond,    299. 

v.  Flemming,  87. 

v.  Friedlander,   229. 

v.  Ladd,  488,  509. 

v.  Loring,    347. 

v.  Mann,  256. 

v.  Moore,  306. 

v.  Phoenix  Ins.  Co.,  405,  456. 

v.  Rankin,  394,  456. 

v.  Simonds,  513. 

v.  State,  109,  156. 

v.  Swain,  350. 

v.  Trotter,  176. 

v.  Western  Union  Tel.  Co.,  287. 

v.  White.  237,  239,  240,  243. 

v.  Wilson,  335. 
Whiteford  v.  Burkmyer,  7. 
Whitehead  v.  Kennedy,  182. 


686 


TABLE  OF  CASES. 


[REFERENCES  ABE  TO  PAGES.] 


Whitehurst  v.  Rogers,  514. 
Whiteley  v.  Equitable  L.  A.   Soc., 

253,  260. 

Whitelocke  v.  Musgrove,  194. 
Whitenack    v.    Stryker,    333,    336. 
Whitener  v.  Belknap  &  Co.,  383. 
Whiteside  v.  Lowney,  469. 
WMtesides  v.  Green,   355. 
Whitford  v.  Crooks,  501. 

v.  Pacific  R.  Co.,  226,  229. 
Whiting  v.  Gaylord,  364. 
v.  Nicholl,  255,  260. 
Whitlock  v.  Castro,  382. 
Whitman  v.  State,  432. 
Whitmire  v.   Wright,   550. 
Whitney  v.  Esson,  320. 
v.  Gauche,  427,  428. 
v.  Goin,  320. 
v.  United  States,  376. 
Whitney  Arms  Co.  v.  Barlow,  547. 
Whiton  v.  Albany  City  Ins.  Co.,  387. 
Whitson  v.  Grosvenor,  517. 
Whittaker  v.  Eighth  Ave.  R.   Co., 

384. 

Whittington  v.  Whittington,  97. 
Whitton  v.  State,  217. 
Whitwell  v.  Barbier,  105. 
Whitworth  v.  Erie  R.  Co.,  292. 
Wicker  v.  Pope,  135. 
Wickersham  v.  Johnston,  224,  230, 

412. 

Wickiser  v.  Cook,  183. 
Wicks'  Lessee  v.  Chaulk,  135,  137. 
Widdow's  Trusts,  In  re,  299. 
Wiese  v.  San  Francisco  M.  F.  Soc., 

487. 

Wiggins  v.  Gillette,  99,  108. 
Wiggins  Ferry  Co.  v.  Chicago  &  A. 

P.  Co.,  405. 

Wightman  v.  Reynolds,  519,  530. 
v.  Western  M.  &  F.  Ins.  Co.,  27. 


Wikel   v.  Jackson   County  Com'rs, 

398,  457. 

Wikoff's  Appeal,  134. 
Wilbor  v.  Stoepel,  120. 
Wilbur  v.  Lynde,  182. 

v.  Tobey,  300. 

v.  Wilbur,  331,  333. 
Wilcox  v.  Henderson,  13,  16,  18. 

v.  Kassick,  104. 

v.  Rome  W.  &  O.  R.  Co.,  2SO. 

v.  Smith,  80. 
Wilcoxson  v.  Burton,  463. 
Wilde  v.  Armsby,  135. 
Wilder  v.  Cowles,  12,  33. 

v.  Ireland,  496. 
Wiles  v.  Woodward,  528. 
Wilkerson  v.   Bishop,  177. 
Wilkes  v.  Cornelius,  303. 
Wilkes  County  Com'rs  v.  Call,  523, 

524. 

Wilkie  v.  Collins,  258. 
Wilkins  v.  Earle,  148,  286. 

v.   May,  559. 

v.  Tourtellott,  93. 
Wilkinson  v.  Loudonsack,  223. 

v.  Wilkinson,  528. 
Willard  v.  Ostrander,  137. 
Willbor,  In  re,  263. 
Willet  v.  Com.,  138. 
Willett  v.  Andrews,  252. 

v.  Rich,  17,  32,  285. 
Williams  v.  Ball,  103. 

v.  Burg,  496. 

v.  Connor,  234. 

v.  Donell,  350. 

v.  East  India  Co.,  12,  32,  206. 

v.  Forbes,  126. 

v.  Gray,  521. 

v.  Gunnels,  26. 

v.  Herrick,  236,  237,  238,  239. 

v.  Hewitt,  111,  546. 


TABLE  OF  CASES. 


'   687 


[REFERENCES  ABE  TO  PAGES.] 


v.  Huntington,  129. 

v.  Hutchinson,  303. 

v.  Johnson,  100. 

v.  Kilburn,  241. 

v.  Langevin,  388,  444. 

v.  Lloyd,  403,  446. 

v.  Lord,  173. 

v.  Merle,  343. 

v.  People,  44. 

v.  Peyton's  Lessee,  90. 

v.  Robinson,  18,  332,  334. 

v.    State,    22,   43,   94,    139,   243, 
327,   370,  371,   425,   426. 

v.  Suffolk  Ins.  Co.,  409. 

v.  Swetland,  523. 

v.  Uncompahgre  Canal  Co.,  83. 

v.  Williams,  151,  179,  241,  258, 
306,  508. 

v.  Woods,  118,  122. 
Williams'  Estate,  195. 
Williamsburg   City   F.   Ins.   Co.   v. 

Frothingham,  109. 
Williamson  v.  Henley,  471. 

v.  Jones,  556,  560,  566. 

v.  Newport  News  &  M.  V.  Co.: 
470. 

v.  Rover  Cycle  Co.,  162. 

v.  Woodman,  526. 
Willis  v.  Lance,  451. 

v.  Lewis,  93. 

Willison  v.  Watkins,  550,  552. 
Willmett  v.  Harmer,  26. 
Willmott  v.  Barber,  566. 
Willoughby  v.  Willoughby,  404,  445. 
Wills  v.   Noyes,  218. 
Wilson  v.  Allen,  151. 

v.  Babb,  246,  249,  251. 

v.  Bumstead,  403. 

v.  California  C.  R.  Co.,  284,  288. 

v.  Glenn,  345. 

v.  Hamprten  F.  Ins.  Co.,  36,  38. 


v.  Hayes,  60,  68,  135,  137. 

v.  Hodges,  251. 

v.  Holt,  104,  108,  151,  195. 

v.  Hotchkiss'  Estate,  132,  133, 
137. 

v.  Kelly,  502. 

v.  Kolheim,   174. 

v.  Lazier,  127,  129. 

v.  Louisiana  Bank,  475. 

v.  McEwan,  517,  522. 

v.  Meivin,  45. 

v.  Mitchell,  185. 

v.  Noonan,  208,  209. 

v.  Owens,  397. 

v.  Palmer,  346. 

v.    Phoenix   Powder   Mfg.   Co., 
413,  445,  491. 

v.   Pittsburgh    &   Y.   Coal  Co., 
497. 

v.  St.  L.  &  S.  F.  R.  Co.,  Ifi6. 

v.   Southern   Pac.   R.  Co.,   283, 
284. 

v.  Spring,  469. 

v.  State,  402. 

v.  United  States,  166. 

v.  Van  Leer,  378,  424,  452,  454. 

v.  Western  N.  C.  Land  Co.,  537. 
Wilson's  Case,  548. 
Wilson's  Ex'r  v.  Deen,  512. 
Wilsons  v.  Bibb,  346. 
Wimer  v.  Simmons,  365. 

v.  Smith,  161. 
Winchell  v.  Edwards,  157. 
Windhaus  v.  Bootz,  147,  149. 
Windland  v.  Deeds,  303. 
Windom  v.  Schuppel,  120,  122,  123. 
Winehart  v.  State,  217. 
Wing  v.  Angrave,  263,  264. 

v.  Stewart,  134,  135. 
Wings  v.  Parker,  531. 
Winkles  v.  Guenther,  134,  137. 


688 


TABLE  OF  CASES. 


[REFERENCES  ABE  TO  PAGES.] 


Winkley  v.  Kaime,  95. 

Winlock  v.  Hardy,  516,  529,  532. 

Winnipiseogee  Lake  Co.  v.  Young, 

362,  381,  427. 
Winona  v.  Burke,  403. 
Winooski  v.  Gokeu,  400. 
Winship  v.  Conner,  253,  255. 
Winsmith    v.    Franklin    Academy, 
551. 

v.  Westfeldt,  500,  501. 
Winter  v.  Pool,  136. 
Wintringham  v.  Hayes,  284. 
Wintrode  v.  Renbarger,  25. 
Wise  v.  Joplin  R.  Co.,  275. 

v.  Williams,  39. 

Wiseman  v.  Lucksinger,  364,  366. 
Wiser  v.  Chesley,  285. 
Wishart  v.  Downey,  170. 
Withers  v.  Patterson,  99,  105. 
Witting  v.  Saint  Louis  &  S.  F.  R. 

Co.,  290,  291,  292. 
Wolf  v.  American  Exp.  Co.,  290. 

v.  Downey,  272. 

v.   State,  435. 
Wolfe  v.  Missouri  P.  R.  Co.,  289, 

429. 

Wolferman  v.  Bell,  135. 
Wolff,  Ex  parte,  197. 
Wollaston  v.   Berkeley,  263. 
Wolverton  v.  State,  244. 
Womack  v.  Austin,  183. 

v.  Dearman,  390. 
Wood  v.  Chapin,  94. 

v.  Corry  Water- Works  Co.,  548. 

v.  Deen,  314. 

v.  Egan,  308. 

v.  Fitz,  388. 

v.  Holly  Mfg.  Co.,  161. 

v.  Jackson,  508,  512. 

v.  Losey,  144. 

v.  Matthews,  152. 


v.  Morehouse,  67,  91. 

v.  North  Western  Ins.  Co.,  423,. 
456. 

v.  Rabe,  179. 

v.  Roeder,  216,  221. 

v.  Seattle,  96. 

v.  State,  199. 

v.  Terry,  539. 

v.  Wellington,  114. 

v.  Whalen,  112. 

v.  Wiley  Const.  Co.,  110. 
Woodbeck  v.  Keller,  26. 
Woodbury  v.  Anoka,  449. 

v.  Fisher,  125. 

v.  Frink,  32,  288. 

v.  Woodbury,  178,  182. 
Woodcock  v.  Calais,  16,  17,  472. 
Woodhull  v.  Whittle,  169. 
Woodruff  v.  Painter,  283. 

v.  Sanders,  308. 
Woods  v.  Banks,  110. 

v.  Bonner,  517,  522. 

v.  Montevallo  C.  &  T.  Co.,  501. 

v.  North,   522. 

v.  Woods'  Adm'r,  253. 
Woodson  v.  Milwaukee  &  St.  P.  R. 

Co.,  274. 
Woodson  Mach.   Co.  v.  Morse,  33, 

304. 
Woodward  v.  Blue,  248,  249,  250. 

v.  Brown,  118. 

v.  Chicago  &  N.  W.  R.  Co.,  382. 

v.  James,  184. 
Woodworth  v.  Gorsline,  495. 

v.   Thompson,  467,  468. 
Woolfolk  v.  Macon  &  A.  R.  Co.,  273. 
Wool  wine's  Adm'r  v.  Cincinnati  & 

O.  R.  Co.,  8. 
Wooten  v.  Harrison,  306. 

v.  Nail,  321. 

v.  Steele,  175. 


TABLE  OF  CASES. 


689 


[REFERENCES  ARE  TO  PAGES.] 


Worcester    Nat.    Bank    v.    Cheney, 

407. 
Worcester   Trustees   v.    Rowlands, 

19. 
Workingmen's   Bank   v.    Converse, 

401. 
Worley  v.  Hineman,  470. 

v.  Spurgeon,  435. 
Wormell  v.  Maine  Cent.  R.  Co.,  7, 

276,  280. 

Wormley's  Estate,  340. 
Worrall  v.  Rhoades,  359. 
Worthing  v.  Webster,  90,  96. 
Worthington  v.   Mencer,  329. 
Wray  v.  Wray,  335. 
Wright  v.  Abbott,  19. 

v.  Andrews,  490. 

v  Com.,  370. 

v.  De  Groff,  530. 

v.  Hawkins,  381,  385,  399,  401. 

v.  Hazen,  103. 

v.  Hicks,  26,  27,  246,  248,  249, 
251. 

v.  Holdgate,  250. 

v.  Howard,  354,  357. 

v.  Jackson,  336,  337. 

v.  Lainson,  119. 

v.  McPike,  211. 

v.  Market  Bank,  336,  338. 

v.  Moore,  354,  359,  361,  363. 
364. 

v.  Netherwood,  263. 

v.  Nostrand,  107. 

v.  People,  23,  326. 

v.  Phillips,  384. 

v.  Pipe  Line  Co.,  547,  548. 

v.  Skinner,  240. 

v.  Snowe,  563. 

v.  Solomon,  343. 

v.  Sun  M.  L.  Ins.  Co.,  266. 

v.  Ter.,   203. 

v.  Vanderplank,  183. 


v.  Wright,    17,    236,    243,    330, 

336. 

Wright's  Appeal,  567. 
Wuester  v.  Folin,  124. 
Wusnig  v.  State,  139. 
Wyant  v.  Central  Tel.  Co.,  440. 
Wyatt  v.   Larimer  &  W.   Irr.  Co., 

234. 
Wyatt's  Adm'r  v.  Scott,  95. 

v.  Steele,  102. 
Wyckoff  v.  Remsen,  118. 
Wyer  v.  Dorchester  &  M.  Bank,  130. 
Wygant,  Ex  parte,  67,  399. 
Wyley  v.  Bull,  303. 
Wylie  v.   Northampton  Bank,  284. 
Wyman  v.  Rae,  317. 
Wynehamer  v.  People,  436. 
Wynn  v.  Harman's   Devisees,  520. 

Y. 

Yakima  Nat.  Bank  v.  Knipe,  132. 
Yardley  v.   Cuthbertson,  216. 
Yardley's  Estate,  237. 
Yarnell  v.   Kansas  City,  Ft.   S.  & 
M.  R.  Co.,  64,  272. 

v.  Moore,  13,  16,  54. 
Yates  v.  Donaldson,  318. 

v.  Houston,  241,  258. 
Yeamans  v.  James,  182. 
Yeaton  v.  Eagle  O.  &  R.  Co.,  114. 

v.   Fry,  388. 
Yell  v.  Lane,  395. 
Yerkes  v.  Hadley,  540. 
Yocum  v.  Smith,  561. 
Yonge  v.  Hooper,  182. 
York   &  M.   L.   R.  Co.   v.  Winans, 

386. 

Yorks  v.  Steele,  490. 
Youn  v.  Lament,  330. 
Young  v.  Bransford,  272. 

v.  Brehe.  489,  506. 

v.  Byrd,  513. 


690 


TABLE  OF  CASES. 


[REFERENCES  ABE  TO  PAGES.] 


v.  Clapp,  85. 

v.  Foster,  237,  239,  243. 

v.  Grote,  560. 

v.  Herman,  303. 

v.  Makepeace,  26. 

v.  Miller,  12,  17,  18,  332. 

v.  Schulenberg,  252. 

v.  Shickle,  H.  &  H.  Iron  Co., 
279. 

v.  Wright,  469. 
Younge  v.  Guilbeau,  121. 
Youngs  v.  Heffner,  260,  262. 

v.  Ransom,  403,  436. 
Yount  v.  Howell,  385,  388. 
Yrisarri  v.  Clement,  409. 


Z. 


Zachary  v.  Pace,  154. 
Zachmann  v.  Zachmann,  246. 
Zeigler  v.  David,  192. 

v.  Gray,  322,  323. 

v.  Hughes,  182. 

v.  Maner,  500. 
Zigefoose  v.   Zigefoose,   366. 
Zimmer  v.  New  York  C.  &  H.  R. 

R.  Co.,  213. 
Zimmerman  v.  Robinson,  541. 

v.  Rote,  561. 
Zimmler  v.   San   Luis  Water   Co., 

524. 
Zuchtmann  v.  Roberts,  559,  562,  567. 


INDEX. 

[REFERENCES  ABE  TO  PAGES.] 


A. 

ACCEPTANCE, 

burden  of  proof  and  presumptions,  123. 

ACCOUNTING, 

burden  of  proof  and  presumptions,  321. 

ADMISSIONS  (see  "Judicial  Admissions"). 

ADVANCEMENTS, 

burden  of  proof  and  presumptions,  301. 

ADVERSE  POSSESSION, 

title  by,  351. 
AGENCY, 

burden  of  proof  and  presumptions,  80,  83. 

continuity,  150. 

legality,  233. 
of  wife, 

as  to  caring  for  absentee's  property,  191. 

as  to  family  necessaries,  192. 

ALTERATION  OF  INSTRUMENTS, 
burden  of  proof,  131. 
presumptions, 

as  to  time  of  alteration,  131. 

as  to  who  made  alteration,  136. 

as  to  intent,  137. 

rebuttal  of  presumptions,  137. 

questions  for  Jury,  137. 
negotiable  instruments, 

effect  of  alteration  on  burden  of  proof,  130. 

APPLICATION  OF  PAYMENT, 

burden  of  proof  and  presumptions,  324. 


692  INDEX. 

[REFERENCES  ARE  TO  PAGES.] 

ATTORNEYS  AT  LAW, 

admissions  by,  see  "Judicial  Admissions." 
presumption  of  authority,  83. 

AUTHORITY, 

presumptions  and  burden  of  proof,  80. 

B. 

BAILMENTS, 

negligence  of  bailee, 

burden  of  proof  and  presumptions,  282. 
carriers,  288. 
innkeepers,  285. 
telegraph  companies,  286. 

BEST  EVIDENCE, 

effect  of  failure  to  offer,  159. 

BILLS  AND  NOTES   (see  "Negotiable  Instruments"). 

BURDEN  OF  PROOF, 

general  nature,  2. 

different  meanings,  3. 

distinguished  from  measure  of  evidence,  20. 
general  operation,  7. 

necessity  of  making  case  for  jury,  7. 
province  of  court  and  of  jury,  7. 
nature  of  evidence,  presumptions,  9. 
discharge  of  burden  of  adducing  evidence,  10. 
prima  facie  case,  11. 

province  of  court  and  of  jury,  11. 
nature  of  evidence,  presumptions,  12. 
discharge  of  burden,  10,  14. 
shifting,  4,  10,  14. 

as  carrying  right  to  open  and  close,  18. 
rules  for  ascertaining  who  bears  burden,  28. 
burden  of  convincing  jury,  28. 

as  determined  by  substantive  law,  29. 
as  affected  by  pleadings,  30. 
as  to  affirmative  defense,  33. 
as  to  counterclaim,  33. 
at  law  and  in  equity,  34. 


INDEX.  693 

[REFERENCES  ABE  TO  PAGES.] 

BURDEN  OF  PROOF— Cont'd. 

burden  of  adducing  evidence,  40. 

peculiar  knowledge  of  facts,  42. 
in  particular  cases,  75,  79. 
actions  of  contract,  29,  35. 
actions  of  tort,  38. 

malicious  prosecution,  31. 
negligence,  30. 

as  to  res  judicata — identity  of  causes  of  action,  513. 
as  to  statutes  of  limitations,  39. 
authority  and  regularity,  80. 

appointment,  qualification,  and  authority,  80. 
contracts  and  conveyances,  116. 
acceptance,  123. 
alteration  of  instrument,  131. 
consideration,  116. 
delivery,  119. 
execution,  116. 
negotiable  instruments,  125. 
corporations,  108. 

grant  and  acceptance  of  charter,  108. 
organization,  108. 
consolidation,  108. 
officers,  111. 

appointment,  111. 
regularity  of  acts,  111. 
powers,  113. 
course  of  business,  84. 

delivery  of  letters  and  telegrams,  84. 
private  business,  88. 
marriage;  114. 

performance  of  official  acts,  88. 
regularity  of  official  acts,  92. 

judicial  proceedings,  98,  107. 
capacity  of  infants,  137. 
contracts,  143. 
crimes,  137. 
torts,  140. 

continuity,  145,  251. 
conversion,  153. 
death,  252. 

cause,  265. 

of  absentee,  252. 


694  INDEX. 

• 

[REFERENCES  ABE  TO  PAGES.7 

BURDEN  OP  PROOF— Cont'd. 
duress,  177. 

fabrication,  spoliation,  suppression,  and  nonproduction  of  evi- 
dence, 154. 
fraud,  171. 

husband  and  wife,  186. 
agency,  191. 

care  of  absentee's  property,  191. 
family  necessaries,  192. 
marital  coercion,  186. 
crimes,  186. 
torts,  189. 
identity,  193. 

innocence,  intent  and  malice,  196. 
civil  cases,  205. 

innocence,  196,  205. 
intent,  198,  206. 
malice,  198,  208. 
criminal  cases,  196. 

justification  and  excuse,  202. 
knowledge  of  contents  of  instrument,  209. 
contracts  and  conveyances,  209. 
wills,  214. 
law,  216. 

knowledge  of  law,  216. 
contracts,  218. 
crimes,  217. 
torts,  218. 

terms  of  foreign  law,  223. 
legality,  232.      . 
agency,  233. 
contracts,  233. 
marriage,  235. 

common-law  marriage,  235. 
legitimacy,  242,  245. 
negligence,  30,  267. 

bailees  in  general,  282. 
carriers  of  goods,  288. 
innkeepers,  285. 
telegraph  companies,  286. 
carriers  of  passengers,  295. 

res  ipsa  loquitur,  295. 
contributory  negligence,  277. 


INDEX.  696 


[REFERENCES  ARE  TO  PAGES.] 

BURDEN  OF  PROOF— Concluded, 
res  ipsa  loquitur,  268. 

electric  wires,  270. 

explosions,  272. 

falling  objects,  271. 

master  and  servant,  276. 

railroad  accidents,  272. 
ownership,  337,  346. 
parent  and  child,  299. 
advancements,  301. 
emancipation,  300. 
issue,  299. 

services  and  support,  302. 
payment,  304. 

accounting  and  settlement,  321. 
application  of  payments,  324. 
by  negotiable  instrument,  316. 
cancellation  of  obligation,  323. 
installments,  324. 
lapse  of  time,  305. 
payment  or  loan,  325. 
payment  or  security,  325. 
possession  of  obligation,  322. 
receipt,  321. 
time  of  payment,  324. 
sanity,  325. 

civil  cases,  329. 

contracts  and  conveyances,  330. 

wills,  331. 

continuance  of  insanity,  335. 
criminal-  cases,  326. 
survivorship,  263. 
undue  influence,  177. 

contracts  and  conveyances,  177. 
wills,  183. 

BUSINESS, 

presumption  from  known  course,  84. 

C. 
CANCELLATION, 

as  creating  presumption  of  payment,  323 
burden  of  proof,  36  note  85. 


696  INDEX. 

[REFERENCES  ARE  TO  PAGES.] 
CARRIERS, 

limitation  of  liability, 

presumption  as  to  consideration,  116. 
of  goods, 

negligence, 

burden  of  proof  and  presumptions,  288. 

connecting  carriers,  293. 
of  passengers, 
negligence, 

burden  of  proof  and  presumptions,  295 

res  ipsa  loquitur,  295. 
contributory  negligence,  278. 

CHANGE  (see  "Continuity"). 

CHASTITY, 

presumption  of,  74. 

CIRCUMSTANTIAL  EVIDENCE, 

definition,  57. 

sufficiency  in  criminal  cases,  23. 

COERCION, 

by  husband,  see  "Husband  and  Wife." 
generally,  see  "Duress." 

COMMERCIAL  PAPER   (see  "Negotiable  Instruments"). 
COMMON  LAW  (see  "Law"). 
CONDITIONS   (see  "Contracts,"  "Conveyances"). 
CONTINUANCE  (see  "Continuity"). 

CONTINUITY, 

presumption  of,  145. 

of  insanity,  presumption  of,  335. 

CONTRACTS    (see,   also,   "Alteration   of   Instruments,"   Conveyances, 

"Negotiable  Instruments"), 
execution,  presumption  as  to,  116. 
delivery,  presumption  as  to,  119. 
acceptance,  presumption  of,  123. 
infants,  presumption  as  to  capacity,  143. 


INDEX.  697 

[REFERENCES   ARE  TO  PAGES.] 

CONTRACTS— Concluded. 

sanity,  presumption  of,  330. 

consideration,  presumption  as  to,  116. 

duress,  burden  of  proof,  177. 

fraud,  burden  of  proof,  172. 

undue  influence,  burden  of  proof,  177. 

mistake, 

presumption  of  knowledge  of  contents  of  contract,  209. 

ignorance  of  law,  218. 

misrepresentation  of  law,  220. 
legality,  burden  of  proof  and  presumptions,  223,  233. 

effect  of  ignorance  of  law,  223. 
ratification,  ignorance  of  law,  221. 
implied,  between  parent  and  child,  302. 
action  on,  burden  of  proof,  29. 

CONTRIBUTORY  NEGLIGENCE  (see  "Negligence"). 

CONVERSION, 

presumption  of,  153. 

CONVEYANCES, 

execution,  presumption  of,  116. 

delivery,  presumption  of,  119. 

acceptance,  presumption  of,  123. 

consideration,  presumption  of,  116. 

alteration,  131. 

undue  influence,  presumptions  and  burden  of  proof.  177. 

knowledge  of  contents,  presumption  of,  209. 

sanity  of  grantor,  presumption  of,  330. 

CORPORATIONS, 

grant  and  acceptance  of  charter,  presumption  of.  108. 

organization,  presumption  as  to,  109. 

consolidation,  presumption  as  to,  111. 

continuity  of  existence,  presumption  of,  150. 

powers,  presumption  as  to,  113. 

officers,  presumptions  as  to  appointment  and  regularity  of  acts,  111. 

COURTS, 

presumption  of  jurisdiction,  98. 

COVERTURE  (see  "Husband  and  Wife"). 

CRIMINAL  LAW, 
alibi, 


698 


INDEX. 


[REFERENCES  ARE  TO  PAGES.] 


CRIMINAL  LAW— Concluded. 

burden  of  proof,  202. 
capacity  of  infants, 

presumptions,  137. 
ignorance  of  law  as  excuse,  217. 
innocence, 

presumption  of,  196. 
intent, 

presumption  of,  198. 
justification  and  excuse,  202. 
malice, 

presumption  of,  198. 
marital  coercion, 

presumption  of,  186,  190. 
possession. 

as  evidence  of  crime,  366. 

as  crime  per  se,  372. 
sanity, 

presumption  of,  326. 

D. 

DEATH, 

of  absentee,  presumption  of,  252. 

of  absent  spouse,  257. 

time  of  death,  259. 

rebuttal  of  presumption,  260. 

effect  of  presumption,  262. 

survivorship,  263. 

from  letters  of  administration  or  letters  testamentary,  259 
presumption  as  to  cause  of,  265. 

DEEDS   (see  "Conveyances"). 

DEFAMATION, 

measure  of  evidence,  20,  25. 
presumption  of  malice,  207. 

DEGREE  OF  EVIDENCE    (see  "Weight  of  Evidence"). 

DELIVERY, 

of  contracts,  see  "Contracts." 

• 

of  deed,  see  "Conveyances." 
DEMONSTRATIVE  EVIDENCE   (see  "Real  Evidence"). 


INDEX.  699 

[REFERENCES  ARE  TO  PAGES.] 
DESCENT  AND  DISTRIBUTION, 

presumption  as  to  advancements,  301. 

DIVORCE, 

presumption  of,  151. 

DOCUMENTARY  EVIDENCE, 

fabrication,  spoliation,  suppression,   and  nonproductlon,  157. 
DURESS, 

presumptions  and  burden  of  proof,  177. 

E. 

ELECTIONS, 

presumption  of  correctness  of  count,  96. 

ELECTRICITY, 

presumption  of  negligence  in  use,  270. 

ESTOPPEL, 

relation  to  law  of  evidence,  476,  484,  554. 
kinds,  476. 
by  record,  477. 

general  considerations,  477. 
by  judgment,  478. 

record  of  judgment  as  evidence  and  effect  of  judgment  as 

estoppel,  478. 
judgment  as  bar  to  action  or  defense,  and  judgment  as 

proof  of  matter  determined,  479. 

relation  of  estoppel  by  judgment  to  law  of  evidence,  484. 
requisites  of  judgment,  486. 
character  of  court,  486. 
validity  of  judgment,  487. 
finality  of  judgment,  488. 
persons  estopped,  489. 
persons  entitled  to  urge  estoppel,  489. 
real  and  nominal  parties,  493. 
persons  liable  over,  494. 
corporate  parties,  497. 
co-parties,  497. 
additional  parties,  498. 
severance  of  parties,  498. 


700  INDEX. 

[REFERENCES  ARE  TO  PAGES.] 

ESTOPPEL— Oont'd. 

parties  in  different  capacities,  499. 
evidence  of  identity,  499. 
privies,  499,  501. 
questions  concluded,  504. 

identity  of  cause  of  action,  505. 
identity  of  matter  in  dispute,  506. 
incidental  and  collateral  matters,  507. 
necessity  of  actual  determination,  508. 
evidence  of  identity,   512. 
burden  of  proof,  513. 
province  of  court  and  of  jury,  513. 
by  deed,  514. 

estoppel  as  to  pre-existing  title,  515. 
estoppel  as  to  after-required  title,  516. 

necessity  and  effect  of  covenants  for  title,  518. 
quitclaim  deed,  520. 
purchase-money  mortgage,  520. 
partition,  521. 

estoppel  as  conveyance  of  title,  521. 
estoppel  as  to  facts  recited,  523. 
persons  estopped,  528. 
persons  entitled  to  urge  estoppel,  528. 
parties  to  deed,  528. 

parties  acting  in  representative  capacity,  529. 
privies,  530. 

grantor  and  grantee,  532. 
strangers  to  deed,  534. 
mutuality  of  estoppel,  534. 

execution,  delivery,  and  acceptance  of  deed,  535. 
modification  of  deed,  536. 
validity  of  deed,  536. 

fraud  and  mistake,  538. 
parties  under  disability,   539. 
construction  of  deed,  541. 
truth  appearing  on  face  of  deed,  541. 
estoppel  against  estoppel,  542. 
Tjy  contract,  543. 

general  considerations,  543. 
validity  of  contract,  544. 
facts  settled  by  contract,  545. 

existence  and  power  of  corporation,  545. 
intention  of  parties,  549. 


INDEX.  701 

[REFERENCES  ARE  TO  PACES.] 

ESTOPPEL— Concluded. 

acts  done  under  contract,  549. 
possession,  549. 

grantor  and  grantee,  549. 

vendor  and  purchaser,  550. 

landlord  and  tenant,  551. 

bailor  and  bailee,  552. 
by  misrepresentation,  552. 

relation  to  law  of  evidence,  554. 
pleading,  554. 

province  of  court  and  jury,  554. 
estoppel  to  assert  illegality,  554. 
land  titles,  555. 
statute  of  frauds,  555. 
parties  estopped,  555. 
requisites  of  estoppel,  551. 

misrepresentation  of  third  person,  557. 

indirect  misrepresentations,  561. 

misrepresentation  of  opinion,  562. 

misrepresentation  of  intention,  562. 

fraudulent  intent,  562. 

negligence,  564. 

change  of  position,  565. 

reliance  on  misrepresentation,  565. 

injury,  565. 

ground  for  anticipating  change  of  possession,  567. 

EXECUTION, 

of  contract,  see  "Contracts." 
of  deed,  see  "Deeds." 

EXECUTORS  AND  ADMINISTRATORS, 

grant  of  letters  as  raising  presumption  of  death,  259. 
regularity  of  acts,  see  "Regularity." 

EXPLOSIONS, 

presumption  of  negligence,  295  note  670,  272. 

F. 

FABRICATION  OF  EVIDENCE, 
presumption  arising  from,  154. 

real  or  demonstrative  evidence,  156. 
documents,  157. 


702  INDEX. 

[REFERENCES  ARE  TO  PAGES.] 

FABRICATION  OF  EVIDENCE— Concluded, 
testimony,  159. 

nature  and  effect  of  presumption,  167. 
effect  of  attempt,  170. 

FOREIGN  LAW, 

presumption  as  to  terms,  223. 
FRAUD, 

burden  of  proof  and  presumptions,  171,  173,  207. 

in  negotiable  instrument,  128. 
measure  of  evidence  required  to  prove,  24. 

FRAUDS,  STATUTE  OF, 
burden  of  proof,  38. 

H. 

HUSBAND  AND  WIFE, 

agency  of  wife,  191. 
marital  coercion, 

crimes,  186,  190. 

torts,  189,  190. 
presumption  arising  from  possession  of  personalty,  340. 

I. 

IDENTITY, 

presumption  of,  193. 
IGNORANCE  (see,  also,  "Knowledge"). 

of  contents  of  instrument,  209. 
of  law,  216. 

ILLEGALITY  (see  "Legality"). 

INDIRECT  EVIDENCE   (see  "Circumstantial  Evidence"). 

INFANCY  (see  "Infants"). 

INFANTS  (see  also  "Parent  and  Child"), 
burden  of  proving  infancy,  143. 
emancipation,  300. 
contracts, 

burden  of  proof  as  to  necessaries,  144. 

burden  of  proving  ratification,  143. 

burden  of  proving  inability  to  restore  consideration,  144. 
ignorance  of  law  as  affecting  ratification,  221. 


INDEX.  703 

[REFERENCES  ABE  TO  PAGES.] 

INFANTS-<3oncluded. 

presumption  as  to  capacity, 
contracts,  143. 
crimes,  137. 
torts,  140. 

INFERENCE, 

distinguished  from  presumption,  46,  60. 

INNKEEPERS, 

negligence,  presumption  and  burden  of  proof,  285. 
INNOCENCE, 

presumption  of, 
civil  cases,  205. 
criminal  cases,  196. 

weight  of  evidence  required  to  rebut,  28. 
conflict  of  presumptions,  73. 

INSANE  PERSONS  (see  also  "Sanity"), 

ignorance  of  law  as  affecting  ratification  of  contract,  222. 

INSANITY  (see  "Sanity"). 

INSTALLMENTS, 

presumption  of  payment,  324. 

INSTRUCTIONS  (see  "Trial"). 

INSURANCE, 

burden  of  proof,  35  note  82,  36  note  83,  37  note,  85. 
cause  of  death   of  insured,  265. 

INTENTION, 

as  to  consequence  of  act, 
civil  cases,  206. 
criminal  cases,  198. 

ISSUE, 

presumptions  as  to,  299. 

J- 

JUDGMENTS, 

estoppel  by,  see  "Estoppel." 
presumptions, 

of  continuity,  149. 

of  jurisdiction  and  regularity,  98. 
res  judicata,  see  "Estoppel." 


704  INDEX. 

[REFERENCES  ABE  TO  .PAGES.] 

JUDICIAL  ADMISSIONS, 

general  considerations,  459. 
effect  in  first  trial,  460. 

admissions  in  proceedings  preliminary  to  trial,  460. 
admissions  in  pleadings,  461. 

admissions  as  defining  issuance,  462. 
effect  of  failure  to  deny  allegation,  463. 
several  answers,  464. 
pleas  in  abatement,  465. 
demurrers,  465. 
admissions  as  evidence,  466. 
several  answers,  466. 
pleadings  of  co-party,  466. 
comment  on  pleadings  by  counsel,  466. 
effect  of  striking  out  withdrawal  or  amendment  of  plead- 
ings, 467. 
admissions  in  agreed  facts  or  in  open  court,  468. 

admissions  by  counsel,  469. 
demurrer  to  evidence,  470. 
payment  into  court,  471. 
effect  in  second  trial,  472. 
construction  of  admission,  473. 

introduction  of  entire  writing,  473. 
withdrawal  of  admission,  474. 

JUDICIAL  NOTICE, 

definition  and  scope,  374. 
distinguished  from  presumption,  46. 
general  rule,  378. 
governmental  affairs,  379. 

domestic  government,  380. 

existence,  extent  and  subdivisions,  380. 

seal  of  state,  385. 

executive  and  administrative  officers,  385. 

extent,  accession,  and  term  of  office,  385. 

powers,  privileges,  and  duties,  387. 

official  acts,  387. 

signature  and  seal,  388. 

legislative  officers,  389. 

judicial  officers,  389. 

courts,  389. 

existence,  seal,  jurisdiction,  and  terms,  389. 

records,  390. 


INDEX.  705 

[REFERENCES  ARE  TO  PAGEH.] 

JUDICIAL  NOTICE— Cont'd. 
practice,  392. 
officers,  393. 
law,  395. 

state  and  federal  law,  395. 
statutes,  397. 

administrative  rules,   402. 
municipal  resolutions  and  ordinances,  402. 
common  law,  403. 
customs  and  usages,  403. 
currency,  406. 
postal  affairs,  407. 
census,  407. 
elections,  407. 
foreign   government,    408. 

existence,  title,  and  extent,  408. 
flag  and  seal  of  state,  409. 
officers  and  courts,  410. 
laws,  411. 

exceptions  arid  qualifications,  414. 
international  affairs,  418. 
law,  418. 
treaties,  418. 
war  and  peace,  418. 
matters  of  notoriety,  419. 
animals,  433. 
arts,  429. 

banks  and  banking,  440. 
course  of  nature,  423. 
disease,  433. 
electricity,  439. 
geography,  427. . 
history,  425. 
human  beings,  432. 
language,  429. 
liquors,  434. 
railroads,  437. 
religious  affairs,  436. 
science,  422. 
tobacco,  434. 
discretion  of  court,  441. 
preliminary  investigation  by  court,  444. 
sources  of  information,  444. 
procedure  as  to  investigation,  446. 


706  INDEX. 

[REFERENCES  ARE  TO  PAGES.] 

JUDICIAL  NOTICE— Concluded, 
private  knowledge  of  court,  447. 
knowledge  of  jurors, 

private  knowledge,  448. 

judicial  knowledge,  449. 
effect  of  judicial  notice, 

as  dispensing  with  evidence,  6  note  4,  452. 

as  to  instructions,  453. 

JUDICIAL  PROCEEDINGS, 

presumption  of  regularity,  98. 

JUDICIAL  SALES, 

presumption  of  regularity,  94. 

JURISDICTION, 

presumption  of,  98. 

K. 
KNOWLEDGE, 

burden  of  proof  as  to  facts  peculiarly  within  knowledge,  42. 
of  contents  of  instrument, 

contracts  and  conveyances,  209. 

wills,  214. 
of  law,  presumption  of,  216. 

L. 

LAW, 

foreign  law,  presumption  as  to  terms,  223. 
knowledge  of,  presumption  of,  216. 

LEGALITY, 

presumption  of,  232. 
agency,  233. 
contracts,  233. 

negotiable  instrument,  128. 
marriage,  235. 

common-law  marriage,  235. 

LEGITIMACY, 

as  depending  on  legality  of  marriage,  see  "Marriage." 
presumption  of,  245. 

rebuttal  of  presumption,  247. 


INDEX.  7U7 

[BEFERENCES  ARE  TO  PAGES.] 


LETTERS, 

presumption  of  delivery,  84. 

LIBEL  (see  "Defamation"). 

LIFE, 

of  absentee,  see  "Death." 
presumptions, 

of  continuance,  251. 

of  survivorship,  263. 

LIMITATION  OF  ACTIONS, 
burden  of  proof,  39. 

LOAN, 

presumption  against,  325. 

LOST  GRANT, 

presumption  of, 

from  circumstantial  evidence,  346. 
from  adverse  possession,  351. 

sufficiency  of  possession,  358. 

M. 
MALICE, 

presumption  of, 
civil  cases,  207. 
criminal  cases,  198. 

MALICIOUS  PROSECUTION, 
burden  of  proof,  31. 

MARRIAGE, 

presumptions, 

of  continuity,  150. 

of  death  of  spouse,  257. 

of  legality,  235. 

common-law  marriage,  235. 
of  regularity,  114. 

MARRIED  WOMEN  (see  "Husband  and  Wife"). 


708  INDEX. 

[REFERENCES  ARE  TO  PAGES.] 
MASTER  AND  SERVANT, 

burdep  of  proof  and  presumptions, 

as  to  cause  for  discharge,  37  note  85. 
as  to  negligence,  276. 

contributory  negligence,  278. 

MISREPRESENTATIONS, 

generally,  see  "Fraud." 
of  law,  220. 

MUNICIPAL  CORPORATIONS, 

contributory  negligence,  278. 
presumption  of  regularity, 
as  to  contracts,  96. 

as  to  acts  of  officers,  96. 

* 

as  to  ordinances,  96. 

N. 

NEGLIGENCE, 

burden  of  proof  and  presumptions,  30,  267. 
res  ipsa  loquitur,  268. 
electric  wires,  270. 
explosions,  272. 
falling  objects,  271. 
railroad  accidents,  272. 
contributory  negligence,  277. 
capacity  of  infants,  141. 
master  and  servant,  276. 
estoppel  by,  see  "Estoppel." 
measure  of  evidence  required  to  prove,  24. 

NEGOTIABLE  INSTRUMENTS, 

burden  of  proof  and  presumptions, 
as  affected  by, 

alteration  of  instrument,  130. 

possession  of  instrument,  340. 
as  to  bona  fide  purchase,  126,  128. 
as  to  consideration,  125. 
as  to  fraud  and  illegality,  128. 
as  to  payment  of  debt, 

by  instrument  of  debtor,  316. 

by  instrument  of  third  person,  319. 


INDEX. 

[REFERENCES  ARE  TO  PAGES.] 

NONPRODUCTION  OF  EVIDENCE, 
presumption  arising  from,  154. 
documents,  157. 

real  or  demonstrative  evidence,  156. 
testimony,  159. 

qualifications  of  presumption,  162. 
nature  and  effect  of  presumption,  167. 
to  secondary  evidence,  169. 

o. 

OFFICERS, 

presumptions  of, 

appointment,  qualification,  and  authority,  80. 
continuity  of  incumbency,  152. 
performance  of  duty,  88. 
regularity  of  acts,  80,  84,  88,  92. 

OPPONENT, 

as  adversary  of  party  bearing  burden  of  proof,  3,  5. 

OWNERSHIP, 

continuity  of,  presumption,  147. 
presumption  of,  from  mere  possession,  337. 

personal  property,  338. 

real  property,  344. 

P. 
PARENT  AND  CHILD, 

burden  of  proof  and  presumptions, 
as  to  advancements,  301. 
as  to  emancipation  of  child,  300. 
as  to  issue,  299. 
as  to  services  and  support,  302. 

PARTNERSHIP, 
presumptions, 

of  authority  of  partner,  131. 
of  continuity,  150. 

PAYMENT, 

burden  of  proof  and  presumptions,  304. 
accounting  and  settlement,  321. 
application  of  payment,  324. 


710  INDEX. 

[BEFERENCES  ABE  TO  PAGES.] 

PAYMENT— Concluded. 

cancellation  of  application,  323. 

installments,   324. 

payment  or  loan,  325. 

payment  or  security,  325. 

possession  of  obligation,  322. 

presumption  from  giving  negotiable  instrument,  316. 

instrument  of  debtor,  316. 

instrument  of  third  person,  319. 
presumption  from  lapse  of  time,  305. 

period  of  delay,  307. 

rebuttal  of  presumption,  309. 
receipt,  321. 
time  of  payment,  324. 
into  court,  as  judicial  admission,  471. 

PENALTY, 

measure  of  evidence  in  action  for,  26. 

PLEADING, 

admission  in,  see  "Judicial  Admissions." 

POSSESSION, 

as  crime  per  se,  372. 

as  creating  presumption  of  guilt  of  crime,  366. 

nature  of  presumption,  366. 

illustrations,  368. 

rebuttal  of  presumption,  370. 

sufficiency  of  possession,  371. ' 
as  creating  presumption  of  ownership,  337. 

personal  property,  338. 

real  property,  344,  346,  351. 
extent  of  presumption,  353. 
nature  of  presumption,  356. 
sufficiency  of  possession,  358. 
continuity  of,  presumption,  147. 

of  evidence  of  debt  as  creating  presumption  of  payment,  322. 
under  judicial  sale  as  creating  presumption  of  regularity,  95. 

PREPONDERANCE  OF  EVIDENCE  (see  "Weight  of  Evidence"). 
PRESCRIPTION,  351. 


INDEX.  711 

[REFERENCES  ARE  TO  PAGES.] 

PRESUMPTIONS, 

definition,  45. 

distinguished  from  inference,  46,  60. 
distinguished  from  judicial  notice,  46. 
of  fact  and  of  law,  48. 
of  fact,  49. 
of  law,  51. 

conclusive  presumptions,  51. 
disputable  presumptions,  52. 
for  jury  and  for  court,  52. 
evidential  and  non-evidential,  55. 
evidential, 
origin,  57. 
nature,  59. 
effect,  61. 
mode  of  establishing  facts  founding  presumption,  63. 

presumption  on  presumption,  64. 
non-evidential, 
nature,  65. 
effect, 

effect  on  burden  of  going  forward  with  trial,  67. 
effect  on  burden  of  convincing  jury,  68. 
conflict  of,  69. 

presumptions  relating  to  burden  of  convincing  jury,  71. 
presumptions  relating  to  burden  of  adducing  evidence,  71. 
conflict  between  presumptions  relating  to  burden  of  convinc- 
ing and  those  relating  to  burden  of  adducing,  73. 
particular  instances,  75. 
adverse  possession,  346. 
authority  and  regularity,  80. 

appointment,  qualification,  and  authority,  80. 
course  of  business,  80. 

delivery  of  letters  and  telegrams,  84. 
private  business,  88. 

performance  and  regularity  of  official  acts, 
performance,  88. 
regularity,  92. 

nature  and  qualification  of  presumption,  97. 
judicial  proceedings, 
Jurisdiction,  98. 
subsequent  proceedings,  107. 


712  INDEX. 

[REFERENCES  ARE  TO  PAGES.] 

PRESUMPTIONS— Cont'd. 

corporations, 

grant  and  acceptance  of  charter,  108. 
organization,  108. 
consolidation,  108. 
officers, 

appointment,  111. 
regularity  of  acts,  111. 
powers,  113. 
marriage,  114 
contracts  and  conveyances, 
consideration,  116. 
execution,  116. 
delivery,  119. 
acceptance,  123 
negotiable  instruments,  125. 
alteration  of  instruments,  131. 
time  of  alteration,  131. 
person  making  alteration,  136. 
intent,  137. 

rebuttal  of  presumption,  137. 
questions  for  jury,  137. 
capacity  of  infants, 
contracts,  143. 
crimes,  137. 
torts,  140. 
continuity, 

general  rules,  145. 
illustrations,  147. 
conversion,  153. 
death, 

cause  of,  265. 
of  absentee,  252. 
residence,  253. 
lack  of  tidings,  255. 
time  of  absence,  255. 
absent  spouse,  257. 
letters  of  administration,  289. 
letters  testamentary,  259. 
time  of  death,  259. 
rebuttal  of  presumption,  260. 
effect  of  presumption,  262. 


INDEX.  7J3 

[REFERENCES  ARE  TO  PAGES.] 

PRESUMPTIONS— Cont'd. 

survivorship,  263. 
duress,  177. 

fabrication,  spoliation,  suppression,  and  nonproduction  of  evi- 
dence, 

presumption  arising  from,  154. 
documents,  157." 

real  or  demonstrative  evidence,  156. 
testimony,  159. 

qualifications  of  presumption,  162. 
nature  and  effect  of  presumption,  167. 

as  to  secondary  evidence,  169. 
attempt  to  fabricate,  170. 
fraud,  171. 
husband  and  wife, 
agency   of  wife, 

•care  of  absentee's  property,  191. 
family  necessaries,  192. 
marital  coercion, 
crimes,  186. 
torts,  189. 

modern  statutes,  190. 
identity,  193. 
innocence, 

civil  cases,  205. 
criminal  cases,  196. 
intent, 

civil  cases,  206 
criminal  cases,  198. 
justification  and  excuse,  202,  208. 
knowledge,'  • 

of  contents  of  instrument, 

contracts  and  conveyances,  209. 
wills,  214. 
of  law,  216. 
law, 

knowledge  of,  216. 
contracts,  218. 

formation  of  contract,  218. 

misrepresentation  of  law,  220. 
ratification  of  contract,  221. 
legality  of  contract,  223. 


714  INDEX. 

[REFERENCES  ABE  TO  PAGES.] 

PRESUMPTIONS— Cont'd. 

crimes,  217. 
torts,  218. 

terms  of  foreign  law,  223. 
common-law,  225. 
statutory  law,  227. 
legality,  232. 
agency,  233. 
contracts,  233. 
marriage,  235. 

common-law  marriage,  235. 
presumption  from  cohabitation  and  repute,  235. 
nature,  237. 
rebuttal,  237. 
matrimonial   intent,   239. 
subsequent  ceremonial  marriage,  241. 
criminal  cases,  243. 
legitimacy,  245. 

rebuttal  of  presumption,  247. 
life, 

continuance  of,  251. 
survivorship,  263. 
lost  grant,  346. 
malice, 

civil  cases,  207. 
criminal  cases,  198. 
negligence,  267. 

res  ipsa  loquitur,  268,  295. 
electric  wires,  270. 
falling  objects,  271. 
explosions,  272. 
railroad  accidents,  272. 
master  and  servant,  276. 
rebuttal  of  presumptions,  276. 
contributory  negligence,  277. 
bailments,  282. 

innkeepers,  285. 
telegraph  companies,  286. 
connecting  lines,  287. 
carriers  of  goods,  288. 

connecting  carriers,  293. 


INDEX.  715 


[REFERENCES  ARE  TO  PAGES.] 
PRESUMPTIONS— Cont'd. 

carriers  of  passengers,  295. 

res  Ipsa  loquitur,  295. 
nonproduction  of  evidence, 

presumption  arising  from,  154. 
ownership,  337. 
parent  and  child, 

advancements,  301. 
emancipation,  300. 
Issue,  299. 

services  and  support,  302. 
payment,  304. 

presumption  from  lapse  of  time,  305. 

period  of  delay,  307. 

rebuttals,  309. 
by  negotiable  instrument, 

of  debtor,  316. 

of  third  person,  319. 
accounting  and  settlement,  321. 
receipt,  321. 

possession  of  obligation,  322. 
cancellation  of  obligation,  323. 
instalments,  324. 
application  of  payments,  324. 
time  of  payment,  324. 
payment  or  loan,  325. 
payment  or  security,  325. 
possession, 

as  evidence  of  crime,  366. 
as  crime  per  se,  372. 
presumption  of  lost  grant,  346. 
presumption  of  ownership,  337. 

personalty,  338. 

realty,  344. 
prescription,  351. 
sanity,  325. 

civil  cases,  329. 

contracts  and  conveyances,  330. 

wills,  331. 

criminal  cases,  326. 
continuance  of  insanity,  335. 


716  INDEX. 

[REFEBENCES  ABE  TO  PAGES.]  . 

PRESUMPTIONS— Concluded. 

spoliation  of  evidence, 

presumption  arising  from,  154. 
suppression  of  evidence, 

presumption  arising  from,  154. 
survivorship,  263. 
undue  influence, 

contracts  and  conveyances,  177. 
relationship  of  parties,  178. 
family  relation,  179. 
confidential  relation,  181. 
termination  of  relation,  383. 
wills,  183. 
use  of  property, 

presumptions  of  ownership,  337. 

PRIM  A  FACIE  CASE, 

what  constitutes,  7  note  8,  11. 

PRINCIPAL  AND  AGENT,  (see  "Agency"). 

PROPONENT, 

as  party  bearing  burden  of  proof,  3,  5. 

PUBLIC  SURVEYS, 

presumption  of  correctness,  94. 

Q. 

QUO  WARRANTO, 

bucden  of  proof,  81. 

R. 

RAILROADS, 

contributory  negligence,   278. 
presumption  of  negligence, 

crossing  accidents,  272. 

fire  set  by  locomotives,  274. 

live-stock  accidents,  272. 

REAL  EVIDENCE, 

fabrication,  spoliation,  suppression  and  nonprodnction,  156. 


INDEX.  717 

[REFERENCES  ARE  TO  PAGES.] 

REAL  PROPERTY, 

prescription,  351. 
presumption  of, 

lost  grant,  346,  351. 

ownership,  344. 

REASONABLE  DOUBT   (see  "Weight  of  Evidence"). 

RECEIPT, 

presumption  of  payment  arising  from,  321. 

RECITALS, 

binding  grantee,  524. 
certainty,  524. 

general  and  particular,  524. 
materiality,  528. 

collateral  matters,  528. 
of  conclusions  of  law,  524. 

REGULARITY, 

presumption  of,  80. 

course  of  business,  84. 
official  acts,  88,  92. 

nature  and  qualification  of  presumption,  97. 
judicial  proceedings, 

Jurisdiction,  98. 

subsequent  proceedings,  107. 
corporations,  108. 

acts  of  officers,  111. 

powers,  113. 
marriage,  114. 
contracts  and  conveyances,  116. 

RES  IPSA  LOQUITUR  (see  "Negligence"). 
RES  JUDICATA  (see  "Estoppel"). 

S. 
SALES, 

presumption  as  to  time  of  payment,  324. 

SANITY, 

conflict  of  presumptions,  73. 

insanity,  presumption  of  continuance,  335. 


718  INDEX. 

[BEFERENCES  AKE  TO  PAGES.] 

SANITY— Concluded. 

presumption  of,  325. 
civil  cases,  329. 

contracts  and  conveyances,  330. 

wills,  331. 
criminal  cases,   326. 

measure  of  evidence  required,  21. 

SEAWORTHINES  S, 

presumption  of  continuity,  147,  153. 

SECONDARY  EVIDENCE, 

of  document  spoliated,  suppressed  or  withheld,  169. 
SETTLEMENT  (see  "Payment,"  "Residence"). 
SLANDER  (see  "Defamation"). 

SPOLIATION  OF  EVIDENCE, 

presumption  arising  from,  154. 
documents,  157. 

real  or  demonstrative  evidence,  156. 
qualifications  of  presumption,  162. 
nature  and  effect  of  presumption,  167. 

as  to  secondary  evidence,  169. 
effect  of  attempt,  170. 

STATUTE  OF  FRAUDS   (see  "Frauds,  Statute  of"). 

STATUTES, 

presumption  of, 

like  legislation  in  foreign  state,  227. 
regularity  of  enactments,  94. 

STATUTES  OF  LIMITATIONS   (see  "Limitation  of  Actions"). 

STREET  RAILROADS, 

contributory  negligence,  278. 

SUFFICIENCY  OF  EVIDENCE  (see  "Weight  of  Evidence"). 

SUICIDE, 

presumption  against,  265. 


INDEX.  ?J9 

[REFERENCES  ARE  TO  PAGES.] 

SUPPRESSION  OF  EVIDENCE, 
presumption  arising  from,  154. 
documents,  157. 

real  or  demonstrative  evidence,  156. 
testimony,  159. 
nature  and  effect  of  presumption,  167. 

secondary  evidence,  169. 
effect  of  attempt,  170. 

SURVIVORSHIP, 

presumption  of,  263. 

T. 

TELEGRAPH  COMPANIES, 
negligence, 

presumptions  and  burden  of  proof,  286. 

connecting  lines,  287. 
presumption  of  delivery  of  telegrams,  87. 

TENDER, 

burden  of  proof,  36  note  85. 

TESTIMONY, 

fabrication,  spoliation,  suppression,  and  nonproduction,  159. 

TORTS, 

ignorance  of  law  as  excuse,  218. 
presumption  as  to, 

capacity  of  infants,  140. 

marital  coercion,  189,  190. 

TRIAL, 

burden  of  proof,  see  "Burden  of  Proof." 
procedure  as  to  judicial  notice,  see  "Judicial  Notice." 
right  to  open  and  close,  18. 
province  of  court  and  of  jury,  7,  11. 

as  to  presumptions,  52. 

as  to  identity  of  issues,  513. 
instructions, 

as  to  judicial  notice,  453. 

as  to  presumptions,  54. 
argument  of  counsel, 

as  to  fact  of  judicial  notice,  453. 

comment  on  pleadings,  466. 


720  INDEX. 

[REFERENCES  ARE  TO  PAGES.] 
TROVER  (see  "Conversion"). 

TRUSTS, 

ignorance  of  law  as  affecting  ratification,  of  contract  by  beneficiary, 
223. 

U. 

UNDUE  INFLUENCE, 

presumptions  and  burden  of  proof, 
contracts  and  conveyances,  177. 
relationship  of  parties,  178. 
family  relation,  179. 
confidential  relation,  181. 
termination  of  relation,  183. 
wills,  183. 

USAGES  (see  "Customs  and  Usages"). 
USE  (see  "Possession"). 

w. 

WAREHOUSEMEN  (see  "Bailments"). 

WARRANTY, 

breach  of,  burden  of  proof,  37  note  85. 

WEIGHT  OF  EVIDENCE, 

measure  of  evidence  required  in, 
civil  cases,  24. 
criminal  cases,  20. 

WILLS, 

burden  of  proof  and  presumptions, 
knowledge  of  contents,  214. 
sanity,  331. 
undue  influence,  183. 

WITHHOLDING  OF  EVIDENCE  (see  "Nonproduction  of  Evidence"). 

WITNESSES, 

effect  of  failure  to  call  privileged  witness,  166. 


s. 


